In this issue:

1. Under Court Order, OFLC to Propose Rescission of H-2B Registration Requirements and Provide Unique H-2B Temporary Registration Numbers – In response to a federal court order, the Department of Labor’s (DOL) Office of Foreign Labor Certification plans to rescind H-2B registration requirements and propose conforming edits throughout its H-2B regulations. In the interim, DOL said it will use the Notice of Acceptance, issued when an H-2B application meets regulatory requirements and the employer can begin recruiting U.S. workers, to inform an H-2B employer of DOL’s determination of the employer’s temporary need for services or labor.

2. House Scheduled to Vote Next Week on Bill to Phase Out Per-Country Caps – The House of Representatives is scheduled to vote next week on a bill that would phase out per-country limits on employment-based green cards.

3. CBP Announces New U.S. Bridge Visa Foil – U.S. Customs and Border Protection announced that it has begun issuing a new visa foil with an image of San Francisco’s Golden Gate Bridge. The foil has been redesigned to replace the Lincoln visa foil.

4. USCIS Says Certain Afghan and Ukrainian Parolees Are Immediately Work Authorized – U.S. Citizenship and Immigration Services is providing employment authorization incident to status normally accorded to refugees and a no-fee initial (and replacement of an initial) employment authorization document to Afghan and Ukrainian parolees, based on recently passed laws.

5. USCIS Announces Expedited Work Authorization Processing, Expanded Fee Exemptions for Afghans – U.S. Citizenship and Immigration Services is extending and expanding previously announced fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2023.

6. Dept. of Labor Announces Additional Listening Sessions on H-2A Program – The agency has added two more listening sessions.

7. OFLC Releases FAQs on Prevailing Wage Surveys Under 2022 H-2A Final Rule – The FAQs are intended to assist State Workforce Agencies and others in understanding the prevailing wage survey methodology of the final rule.

8. USCIS Accepting Only 8/19/22 Edition of N-648, Medical Certification for Disability Exceptions – U.S. Citizenship and Immigration Services is accepting only the 8/19/22 edition of Form N-648, Medical Certification for Disability Exceptions. USCIS revised the form and removed several questions.

9. Title 42 Policy Blocked Effective December 21 – On November 15, 2022, a U.S. District Court judge blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which the judge granted. The order will be effective December 21, 2022.

10. Visa Bulletin for December 2022 Includes Many Updates – The Department of State’s Visa Bulletin for December 2022 includes a variety of updates. The estimated employment-based annual limit will be 197,000 for FY 2023.

11. Inspector General Releases Annual Statement on State Dept.’s Major Management and Performance Challenges – The Office of the Inspector General found that the ConsularOne program, initially launched to modernize and consolidate approximately 90 discrete consular legacy systems into a common technology framework, has experienced deficiencies and delays with profound implications.

12. USCIS Releases Tips on Avoiding Paper Filing-Related Delays – U.S. Citizenship and Immigration Services has released tips to avoid paper filing-related scanning delays.

13. State Dept. Announces Diversity Visa Reassignment Procedures for Kabul – All operations are suspended at the U.S. Embassy in Kabul, Afghanistan. Diversity visa (DV) selectees for the 2023 DV program year with a case assigned to U.S. Embassy Kabul should request reassignment to another embassy or consulate that processes DV applications.

14. Labor Dept. Announces H-2A Visa Program Listening Sessions – In conjunction with the Department of Labor’s (DOL) previously announced intention to engage in additional rulemaking on the H-2A visa program for temporary agricultural employment of foreign workers, DOL announced two virtual listening sessions, one for employers and their representatives and another for workers and their advocates.

15. OFLC Releases Public Disclosure Data, Selected Program Statistics, H-2B Foreign Labor Recruiter List for Q4 of FY 2022 – The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released various data and statistics, and the latest H-2B recruiter list.

16. DHS Releases List of Countries Eligible for H-2A and H-2B Programs, Adds Eswatini – Each country’s designation is valid until November 9, 2023.

17. DHS Continues TPS and Related Documentation for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal – To ensure its continued compliance with several court orders, the Department of Homeland Security is automatically extending the validity of certain temporary protected status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through June 30, 2024.

18. E-Verify Issues Reminder to Employers and Program Administrators on Terminating User Accounts – Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding.

19. CIS Ombudsman Introduces Revised Form for Requesting Case Assistance – The updated Form 7001, which expires on September 30, 2025, includes embedded instructions with questions, expanded and reorganized sections, detailed instructions on supporting documentation, and an option to include multiple employment-based beneficiaries on one case assistance request.

20. State Dept. Announces Full Resumption of Interviews for All Immigrant Visa Categories in Havana in January 2023 – The U.S. Embassy in Havana, Cuba, will resume full immigrant visa processing beginning on January 4, 2023. U.S. Embassy Georgetown in Guyana will continue to process Cuban immigrant visa applicants scheduled for appointments there through the end of December 2022.

21. President Accepts Resignation of CBP Commissioner – Chris Magnus was accused of unprofessional behavior by other officials working with him.

22. ABIL Global: Canada and Italy – A new bilateral agreement has been in force since November 1, 2022, for Italian and Canadian citizens between the ages of 18 and 35.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – December 2022

1. Under Court Order, OFLC to Propose Rescission of H-2B Registration Requirements and Provide Unique H-2B Temporary Registration Numbers

In response to a federal court order in Padilla Construction Company v. Walsh, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) plans to rescind H-2B registration requirements and propose conforming edits throughout its H-2B regulations.

In the interim, DOL said it will use the Notice of Acceptance (NOA), issued when an H-2B application meets regulatory requirements and the employer can begin recruiting U.S. workers, to inform an H-2B employer of DOL’s determination of the employer’s temporary need for services or labor:

Where an employer is determined to have a temporary need for services or labor, the NOA will provide the employer with a unique temporary need registration number, which may remain active for up to three years and which will be considered as one piece of evidence during [DOL’s] adjudication of the employer’s temporary need in future application filings. [DOL] will use a Notice of Deficiency to inform an H-2B employer when its temporary need for an application filing is in question, to request additional information, and also to inform an employer of deactivation of its temporary need registration number if the number has expired or if it appears that the employer no longer demonstrates a temporary need.

OFLC said the announcement of its future proposal to rescind H-2B registration requirements will not affect H-2B application filings for the 2023 peak application filing season for the second-half visa cap.

Details:

• OFLC announcement, Dec. 1, 2022. https://www.dol.gov/agencies/eta/foreign-labor
• Padilla Construction Company v. Walsh, No. 2:18-cv-1214 (C.D. Cal. Nov. 2, 2022).

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2. House Scheduled to Vote Next Week on Bill to Phase Out Per-Country Caps

According to reports, Rep. Steny Hoyer (D-MD) said the House of Representatives is scheduled to vote next week on the Equal Access to Green cards for Legal Employment (EAGLE) Act of 2022 (H.R. 3648), a bill that would phase out per-country limits on employment-based green cards and raise annual limits on family-based green cards.

The bill appears to have substantial bipartisan support, although its prospects in the current session of Congress are uncertain as the lame-duck period draws to a close. Similar legislation passed the Senate unanimously in 2020 through a fast-tracked process but could not be reconciled with the House version.

In addition to eliminating per-country limits, the bill would also:

• Establish nine-year transition rules for employment-based visas such as (1) reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability) and EB-3 (skilled and other workers) visas for individuals not from the two countries with the largest number of recipients of such visas, and (2) allot a number of visas for professional nurses and physical therapists.
• Impose additional requirements on an employer seeking an H-1B visa, such as prohibiting (1) an employer from advertising that a position is only open to H-1B applicants or that H-1B applicants are preferred, and (2) certain employers from having more than half of their employees as nonimmigrant visa workers.
• Require the Department of Labor (DOL) to create a publicly available website where an employer seeking an H-1B visa must post certain information about the open position.
• Expand DOL’s authority to review and investigate H-1B applications for fraud or misrepresentation.
• Allow certain people to obtain lawful permanent resident status if they (1) are in the United States as a nonimmigrant, (2) have an approved immigrant visa petition, and (3) have waited at least two years for a visa.

Details:

• “Immigration Bill Aimed at Workforce Needs Poised for House Vote,” Bloomberg Government, Nov. 29, 2022. https://about.bgov.com/news/immigration-bill-aimed-at-workforce-needs-poised-for-house-vote/##
• R. 3648 (EAGLE Act of 2022). https://www.congress.gov/bill/117th-congress/house-bill/3648
• R. 3648 Content Details. https://www.govinfo.gov/app/details/BILLS-117hr3648rh

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3. CBP Announces New U.S. Bridge Visa Foil

U.S. Customs and Border Protection announced on November 21, 2022, that it has begun issuing a new visa foil with an image of San Francisco’s Golden Gate Bridge. The foil has been redesigned to replace the Lincoln visa foil. As each consular post depletes its Lincoln visa foil stock it will begin to issue the Bridge visa foil. All Lincoln Visas will remain valid until the printed expiration date, unless revoked or canceled.

Questions on boarding travelers should be directed to the appropriate Regional Carrier Liaison Group, Immigration Advisory Program Officer, or Joint Security Program Officer, U.S. Customs and Border Protection said.

Details:

“The U.S. Visa Will Have a New Image Printed on Its Foil. It Won’t Be Lincoln Anymore,” Miami Herald (AOL News), Dec. 3, 2022. https://www.aol.com/news/u-visa-image-printed-foil-165005973.html

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4. USCIS Says Certain Afghan and Ukrainian Parolees Are Immediately Work Authorized

Effective November 21, 2022, certain Afghan and Ukrainian parolees are work authorized incident to their parole status based on recently passed laws, U.S. Citizenship and Immigration Services (USCIS) announced. To implement the statutory language, “other benefits available to refugees,” USCIS is providing employment authorization incident to status normally accorded to refugees and a no-fee initial (and replacement of an initial) employment authorization document (EAD) to Afghan and Ukrainian parolees so they “receive the same treatment as refugees,” the agency said.

This policy applies to the following individuals if their parole has not been terminated:

• Afghan parolees whose unexpired Form I-94, Arrival/Departure Record, contains a class of admission of “OAR.” Those who are Afghan parolees covered under section 2502(b), P.L. No. 117-43, who did not receive an “OAR” class of admission on their Form I-94 should email U.S. Customs and Border Protection at [email protected] to update their class of admission, if appropriate;
• Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “UHP”; and
• Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between February 24, 2022, and September 30, 2023, and indicates Ukraine as the country of citizenship on the document.

For these parolees, their unexpired Form I-94 is an acceptable receipt they may present to employers to show their identity and employment authorization for the purposes of Form I-9, Employment Eligibility Verification. The receipt satisfies the Form I-9 requirement for 90 days from the date of hire (or in the case of reverification, the date employment authorization expires). After the 90-day period, parolees must present an EAD or unrestricted Social Security card and acceptable List B identity document from the Form I-9 Lists of Acceptable Documents (such as a state-issued driver’s license or identification card). Ukrainian and Afghan parolees must still file a Form I-765 to receive a physical EAD.

Effective November 21, 2022, USCIS is also exempting the fee to file Form I-765 for Ukrainian parolees filing for an EAD by mail. Afghan parolees under OAW are already exempt from the fee for an initial paper-filed Form I-765 (and a replacement EAD) through September 30, 2023.

Effective December 5, 2022, USCIS is able to process fee exemptions for online filings of Form I-765 for eligible Ukrainian and Afghan parolees.

Details:

• USCIS alert, Nov. 21, 2022.
• “Feds Grant Ukrainians, Afghans Immediate Work Authorization,” Law360, Nov. 22, 2022. https://www.law360.com/articles/1552063/feds-grant-ukrainians-afghans-immediate-work-authorization (registration required)

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5. USCIS Announces Expedited Work Authorization Processing, Expanded Fee Exemptions for Afghans

U.S. Citizenship and Immigration Services (USCIS) is extending and expanding previously announced fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2023.

Fee exemptions include:

• An initial or replacement Form I-765, Application for Employment Authorization, for Afghan nationals who are applying for work authorization on the basis of parole (eligibility category (c)(11));
• Form I-485, Application to Register Permanent Residence or Adjust Status, to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601, Application for Waiver of Grounds of Inadmissibility;
• Form I-130, Petition for Alien Relative, filed with USCIS in the United States on behalf of any Afghan national (beneficiary) with a visa immediately available;
• Form I-824, Application for Action on an Approved Application or Petition, for an Afghan holding a Special Immigrant Visa;
• Form I-601, Application for Waiver of Grounds of Inadmissibility, for any Afghan national with an approved Form I-130 with a visa immediately available; and
• USCIS Immigrant Fee (Form I-551) for Afghan nationals.

Expedited processing includes:

• An initial and replacement Form I-765 for those applying for employment authorization on the basis of parole (eligibility category (c)(11));
• Form I-485 for Afghan nationals seeking to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601;
• Form I-589, Application for Asylum and for Withholding of Removal, filed by certain Afghan parolees as described in § 2502(a) of the Extending Government Funding and Delivering Emergency Assistance Act of 2021;
• Form I-130, filed with USCIS in the United States on behalf of an Afghan national (beneficiary) with a visa immediately available, and any associated Form I-601; and
• Form I-140, Immigrant Petition for Alien Workers, filed with USCIS on behalf of an Afghan national (beneficiary) with a visa immediately available.

Details:

• USCIS alert, Nov. 22, 2022. https://www.uscis.gov/newsroom/alerts/uscis-extends-and-expands-fee-exemptions-and-expedited-processing-for-afghan-nationals

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6. Dept. of Labor Announces Additional Listening Sessions on H-2A Program

The Department of Labor (DOL) previously announced that it intends to engage in additional rulemaking concerning the H-2A visa program for the temporary agricultural employment of foreign workers. DOL initially announced it would conduct two public virtual listening sessions to gather input about possible changes to the H-2A regulations. The agency has added two more listening sessions, one for employers and their representatives and another for workers and their advocates.

DOL said it is “interested in hearing about the experiences of workers and employers,” so it encourages “worker and employer representatives to include their members’ perspectives in their remarks or to invite workers or employers to share their experiences directly.”

Below are the dates, times, and registration links for each of the sessions:

• Employers and Employer Representatives: Tuesday, December 6, from 1 to 2:30 p.m. ET
• Workers and Advocates: Wednesday, November 30, from 7 to 8:30 p.m. ET or Wednesday, December 7, from 7 to 8:30 p.m. ET

Details:

• Office of Foreign Labor Certification announcement. https://www.dol.gov/agencies/eta/foreign-labor (scroll to November 25, 2022)

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7. OFLC Releases FAQs on Prevailing Wage Surveys Under 2022 H-2A Final Rule

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released frequently asked questions (FAQs) on prevailing wage surveys under the 2022 H-2A final rule, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States,” published on October 12, 2022, and effective November 14, 2022.

OFLC said the FAQs are intended to assist State Workforce Agencies (SWAs) and others in understanding the prevailing wage survey methodology of the final rule. OFLC said the updated methodology:

• Allows the SWAs to conduct prevailing wage surveys or to leverage surveys conducted by other state agencies, state colleges, or state universities, provided that the survey meets the standards listed in 20 CFR § 655.120(c)(1);
• Permits the SWAs to determine the best data collection period for a particular prevailing wage survey;
• Enables the SWAs to make decisions about prioritizing precision, accuracy, granularity, or other quality factors in the data they use to inform prevailing wage findings, rather than requiring statistical validity;
• Establishes standards to produce prevailing wage findings for crop activities and agricultural activities with few employers and U.S. workers;
• Establishes a regulatory process for the SWAs to submit prevailing wage surveys to OFLC and for OFLC to review, approve, and post prevailing wages on OFLC’s Agricultural Online Wage Library (AOWL); and
• Provides that a prevailing wage finding is valid for one year from the date of posting on OFLC’s website (i.e., AOWL) or until replaced with an adjusted prevailing wage finding, whichever comes first.

DOL provides additional information about prevailing wage survey methodological requirements in the preamble to the 2022 H-2A final rule. In particular, the agency called attention to pages 61689 through 61701.

Details:

• “Prevailing Wage Surveys,” OFLC FAQ, Nov. 21, 2022. https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/2022%20H-2A%20FR_SWA%20FAQs_PW%20surveys%20Nov%2017.pdf
• H-2A final rule, 87 Fed. Reg. 61660 (Oct. 12, 2022). https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-20506.pdf

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8. USCIS Accepting Only 8/19/22 Edition of N-648, Medical Certification for Disability Exceptions

As of November 21, 2022, U.S. Citizenship and Immigration Services (USCIS) is accepting only the 8/19/22 edition of Form N-648, Medical Certification for Disability Exceptions. USCIS revised the form and removed several questions, including dates of diagnosis and when the disability or impairment began; description of severity of each disability or impairment; effects on the applicant’s daily life; and an explanation of the doctor-patient relationship. Also, telehealth medical examinations are now permitted for Form N-648, among other changes.

USCIS will accept a Form N-648 after a Form N-400 is filed but recommends that applicants submit both forms at the same time.

Details:

Fact Sheet: Medical Certification for Disability Exceptions, Form N-648, English Language Exemptions, and Accommodations, USCIS. https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheet_N-648_MedCertForDisabilityExceptions.pdf

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9. Title 42 Policy Blocked Effective December 21

On November 15, 2022, U.S. District Court Judge Emmet Sullivan blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which Judge Sullivan granted. The order will be effective December 21, 2022.

The Trump administration instituted the policy in March 2020, with the stated purpose of preventing the spread of the COVID-19 virus. Title 42 was the subject of litigation, and the Biden administration was prevented from revoking the policy. In vacating Title 42, the court noted that the Centers for Disease Control and Prevention (CDC) recognizes that current public health conditions no longer require continuation of an order to keep migrants out of the United States, and that plaintiffs would continue to face substantial harm if they were returned to their home countries. In its order vacating the policy, the court included “all orders and decision memos issued by the [CDC] suspending the right to introduce certain persons into the United States.” The court also declared the Title 42 policy to be “arbitrary and capricious in violation of the Administrative Procedure Act.”

The Department of Homeland Security (DHS) said the delay in implementation of the court’s order “will allow the government to prepare for an orderly transition to new policies at the border. But to be clear, under the unopposed motion, Title 42 would remain in place for some period.”

Details:

• Huisha-Huisha v. Mayorkas, Memorandum Opinion, Nov. 15, 2022. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2021cv0100-165
• Unopposed Emergency Motion for Temporary Stay of the Court’s November 15, 2022, Order, Nov. 15, 2022. https://storage.courtlistener.com/recap/gov.uscourts.dcd.225870/gov.uscourts.dcd.225870.166.0.pdf
• “Judge Blocks Title 42 Limits at Border,” Politico, Nov. 15, 2022. https://www.politico.com/news/2022/11/15/immigration-judge-blocks-title-42-limits-00067083
• “Federal Judge Blocks Title 42 Rule That Allowed Expulsion of Migrants at U.S.-Mexico Border, Puts Order on Hold for 5 Weeks,” CNN, Nov. 16, 2022. https://www.cnn.com/2022/11/15/politics/title-42-migrants/index.html
• DHS statement, Nov. 15, 2022. https://www.dhs.gov/news/2022/11/15/statement-dhs-decision-regarding-title-42

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10. Visa Bulletin for December 2022 Includes Many Updates

The Department of State’s Visa Bulletin for December 2022 includes a variety of updates:

• The estimated employment-based annual limit will be 197,000 for fiscal year (FY) 2023.
• Establishment of final action dates and application filing dates for China and India will most likely be necessary in the coming months.
• DOS has deemed it necessary to establish a worldwide employment second preference final action and application filing dates effective in December. Except for China and India, all countries are subject to a final action date of 01NOV22 and an application filing date of 01DEC22.
• Fewer additional numbers will be available to India in the employment second preference category than originally estimated when the October and November final action and application filing dates were established. Therefore, further corrective action has been necessary to ensure that the limited supply of visa numbers is allocated by priority date.
• High demand in the employment fourth preference category has necessitated the establishment of a worldwide final action date and application filing date for December. Except for El Salvador, Guatemala, Honduras, and Mexico, all countries are subject to a final action date of 22JUN22 and an application filing date of 22JUL22.
• Higher than expected demand in the employment fourth preference category for El Salvador, Guatemala, and Honduras may necessitate corrective action.
• The Certain Religious Workers (SR) category is set to expire as of December 16, 2022. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 15, 2022. Visas issued prior to that date will be valid only until December 15, 2022, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States no later than midnight December 15, 2022. If legislative action extends this category, the December dates will be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective December 16, 2022.

Details:

• Visa Bulletin for December 2022. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-december-2022.html

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11. Inspector General Releases Annual Statement on State Dept.’s Major Management and Performance Challenges

The Department of State’s (DOS) Office of Inspector General (OIG) released its annual statement on November 18, 2022, on DOS’s major management and performance challenges. The latest report noted that OIG’s recent review of the Bureau of Consular Affairs’ ConsularOne Modernization Program found:

[I]n the 10 years since the program began in 2011, the responsible office had conducted a very limited pilot of just one component of the program—the customer-facing portion of the electronic Consular Report of Birth Abroad—and had continued to miss deployment dates for other components. Initially launched to modernize and consolidate approximately 90 discrete consular legacy systems into a common technology framework, the program has experienced deficiencies and delays with profound implications for the bureau’s three fundamental responsibilities: the issuance of passports and other documentation to citizens and nationals, the protection of U.S. border security and facilitation of legitimate travel to the United States, and ensuring the welfare and protection of U.S. citizens abroad.

OIG’s review this year found that the program’s leadership “was unable to provide a clear, uniform definition of the ConsularOne program, what components it included, and which contracts supported the program, creating confusion for stakeholders.” This lack of clarity “hindered leadership’s oversight of the modernization effort and the ability to hold staff accountable for their performance.”

Details:

• Inspector General Statement on the Department of State’s Major Management and Performance Challenges, Fiscal Year 2022, https://www.stateoig.gov/uploads/report/reportpdffile/oigex2302.pdf

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12. USCIS Releases Tips on Avoiding Paper Filing-Related Delays

On November 16, 2022, U.S. Citizenship and Immigration Services (USCIS) released tips to avoid paper filing-related scanning delays. USCIS said it scans and uploads many documents into electronic database systems as it moves toward an increasing electronic environment.

Examples of practices to avoid include attaching documents together with staples, paper clips or other methods; folding documents; using insertable tab dividers; submitting multiple copies unless required; and sending original documents unless required, among other tips.

Details:

• USCIS alert, Nov. 16, 2022. https://www.uscis.gov/newsroom/alerts/recommendations-for-paper-filings-to-avoid-scanning-delays

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13. State Dept. Announces Diversity Visa Reassignment Procedures for Kabul

The Department of State announced on November 18, 2022, that all operations are suspended at the U.S. Embassy in Kabul, Afghanistan. Diversity visa (DV) selectees for the 2023 DV program year with a case assigned to U.S. Embassy Kabul should request reassignment to another embassy or consulate that processes DV applications. The selectee must be physically present in the consular district where the embassy or consulate is located at the time of the interview and have permission and the ability to remain in that country for a period sufficient to complete processing of the visa application.

To request reassignment, the DV selectee should e-mail the Kentucky Consular Center (KCC) at [email protected] with the subject line “Kabul Reassignment Request.” The email should include: (1) full name, (2) date of birth, (3) case number, and (4) name of the embassy or consulate where the selectee would like the case to be reassigned. After KCC reviews the request, the selectee will receive an email confirmation that the reassignment request was successful or, alternatively, requesting more information.

Those who are unable to travel to the embassy or consulate where the appointment has been scheduled may contact another U.S. embassy or consulate that processes DV applications to request a transfer.

Details:

• Diversity Visa Reassignment Procedures for Kabul, Dept. of State, Nov. 18, 2022, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-reassignment-procedures-for-kabul.html
• For more information on visa processing at specific posts, see https://www.usembassy.gov/ and review the page for the visa section of the relevant U.S. embassy or consulate.
• DV Entrant Status Check, https://dvprogram.state.gov/

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14. Labor Dept. Announces H-2A Visa Program Listening Sessions

In conjunction with the Department of Labor’s (DOL) previously announced intention to engage in additional rulemaking on the H-2A visa program for temporary agricultural employment of foreign workers, DOL is offering two virtual listening sessions, one for employers and their representatives and another for workers and their advocates, to gather input about the possible changes to the H-2A regulations.

The sessions are open to the public. The employers/representatives’ listening session will be held Tuesday, November 29, 2022, from 3 to 4 p.m. ET. The workers/advocates listening session will be held Wednesday, November 30, 2022, from 7 to 8:30 p.m. ET. Registrants will be emailed a Zoom link one day before the event begins. Questions should be emailed to [email protected].

Details:

• DOL announcement, Nov. 17, 2022. https://www.dol.gov/agencies/eta/foreign-labor
• Employers/representatives session registration. https://www.eventbrite.com/e/h-2a-regulations-listening-session-for-employers-registration-454006905877
• Workers/advocates session registration. https://www.eventbrite.com/e/h-2a-regulations-listening-session-for-workers-registration-453908441367

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15. OFLC Releases Public Disclosure Data, Selected Program Statistics, H-2B Foreign Labor Recruiter List for Q4 of FY 2022

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released:

• A comprehensive set of public disclosure data through the final quarter of fiscal year (FY) 2022 drawn from employer applications requesting prevailing wage determinations and labor certifications for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs. The public disclosure files include all final determinations OFLC issued for these programs during the October 1, 2021 through September 30, 2022 reporting period of fiscal year 2022.
• Selected program statistics for the second quarter of fiscal year 2022 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.
• An updated list of the names of foreign labor recruiters for the H-2B program.

Details:

• OFLC notices, Nov. 15, 2022. https://www.dol.gov/agencies/eta/foreign-labor

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16. DHS Releases List of Countries Eligible for H-2A and H-2B Programs, Adds Eswatini

The Department of Homeland Security (DHS), in consultation with the Department of State, announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. Effective November 10, 2022, DHS added the Kingdom of Eswatini (formerly Swaziland) to the list. Each country’s designation is valid until November 9, 2023.

DHS said that U.S. Citizenship and Immigration Services (USCIS) may approve H-2A and H-2B petitions, including those pending as of the date of publication of the Federal Register notice on November 10, 2022, “for nationals of countries not on the lists on a case-by-case basis only if doing so is determined to be in the interest of the United States.”

DHS said the notice does not affect the status of H-2 beneficiaries who are currently in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice. Similarly, the notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved before the date of publication. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B.

Details:

• DHS notice, 87 Fed. Reg. 67930 (Nov. 10, 2022). https://www.govinfo.gov/content/pkg/FR-2022-11-10/pdf/2022-24539.pdf
• USCIS alert, Nov. 9, 2022, https://www.uscis.gov/newsroom/alerts/dhs-announces-countries-eligible-for-h-2a-and-h-2b-visa-programs-0

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17. DHS Continues TPS and Related Documentation for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal

To ensure its continued compliance with several court orders, the Department of Homeland Security (DHS) is automatically extending the validity of certain temporary protected status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal from the current expiration date of December 31, 2022, through June 30, 2024. The extension will be announced in a Federal Register notice to be published on November 16, 2022.

DHS explained that beneficiaries under the existing TPS designations for El Salvador, Nicaragua, Honduras, and Nepal; the 2011 designation of Haiti; and the 2013 designation of Sudan will retain their TPS while the court orders remain in effect, provided that their TPS is not withdrawn because of individual ineligibility. They may also apply under the more recent designations of Haiti and Sudan in 2021 and 2022, respectively. If granted TPS, they will retain TPS in accordance with their grants. Other individuals who have been newly granted TPS under the 2021 designation of Haiti and the 2022 designation of Sudan, but who did not have TPS at the time of those designations, are not covered by the notice. Their TPS grants remain valid in accordance with their individual approval notices from U.S. Citizenship and Immigration Services (USCIS).

The notice further provides information on the automatic extension of the validity of TPS-related employment authorization documents (EADs); Notices of Action (Forms I-797); and Arrival/Departure Records (Forms I-94) for beneficiaries under the TPS designations.

Details:

• DHS notice (advance copy), https://public-inspection.federalregister.gov/2022-24984.pdf

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18. E-Verify Issues Reminder to Employers and Program Administrators on Terminating User Accounts

E-Verify recently reminded employers and program administrators that an E-Verify user’s access “must be promptly terminated upon separation from your organization.” A good practice, E-Verify said, is to review and update existing users whenever staffing changes occur and also on a regular basis.

User accounts should be deleted whenever a user is separated from the organization or the user’s role no longer requires access. Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding, E-Verify noted.

E-Verify also notified program administrators that their accounts are associated with their employers: “If you are hired by a new employer, you will need to create a new account. You are prohibited from using your old employer’s account to create cases for a new employer.”

Details:

• E-Verify reminder, https://www.e-verify.gov/about-e-verify/whats-new/reminder-terminating-user-accounts-for-e-verify-employers-and-program

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19. CIS Ombudsman Introduces Revised Form for Requesting Case Assistance

The Citizenship and Immigration Services (CIS) Ombudsman released an updated Form 7001, Request for Case Assistance.

The updated form, which expires on September 30, 2025, includes embedded instructions with questions, expanded and reorganized sections, detailed instructions on supporting documentation, and an option to include multiple employment-based beneficiaries on one case assistance request.

Details:

• DHS Form 7001, Request for Case Assistance, https://www.dhs.gov/topic/cis-ombudsman/forms/7001#no-back

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20. State Dept. Announces Full Resumption of Interviews for All Immigrant Visa Categories in Havana in January 2023

The Department of State (DOS) announced on November 10, 2022, that the U.S. Embassy in Havana, Cuba, will resume full immigrant visa processing beginning on January 4, 2023. The U.S. Embassy Georgetown in Guyana will continue to process Cuban immigrant visa applicants scheduled for appointments there through the end of December 2022. Immigrant visa applicants whose appointments were originally scheduled in Georgetown will complete case processing there.

Embassy Havana will process diversity visa cases for applicants who reside in Cuba beginning in January 2023. DOS noted that Havana will not be an option on the dropdown menu when diversity visa selectees pick an interview location on the DS-260 immigrant visa application form. They should continue to select Georgetown for the DV-2023 program year. DOS said that applicants who provide a residential address within Cuba on their DS-260s will have their cases automatically reassigned to Havana, unless they have already been scheduled at Georgetown.

Immigrant visa applicants scheduled for January 2023 appointments in Havana will begin receiving appointment notices on or after November 10, 2022.

Details:

• DOS notice,

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21. President Accepts Resignation of CBP Commissioner

On November 12, 2022, President Joe Biden accepted the resignation of Chris Magnus, U.S. Customs and Border Protection Commissioner. He had initially refused to step down after Alejandro Mayorkas, Secretary of Homeland Security, reportedly told Mr. Magnus on November 9, 2022, that he must resign or he would be fired. Mr. Magnus’s duties and direct reports have been shifted to other people, an unnamed DHS official said.

Mr. Magnus was accused of unprofessional behavior by other officials working with him, an earlier report says. Several Republicans in the House of Representatives, who criticized his handling of border issues, then urged President Biden to call for Mr. Magnus’ resignation. Citing the earlier report, the letter also alleged that Mr. Magnus “fails to attend high-level meetings,” engages in “constant complaining about his fellow senior officials” in DHS, “was caught sleeping through some of the meetings he actually attended,” and “fails to actively participate during internal calls with Secretary Mayorkas regarding border and immigration issues.”

Details:

• “Customs and Border Protection Chief Resigns After Refusing Request to Step Down,” NBC News, Nov. 12, 2022. https://www.nbcnews.com/politics/immigration/customs-border-protection-chief-refusing-request-step-dhs-official-say-rcna56826
• S. Customs and Border Protection Commissioner Resigns,” CNN, Nov. 12, 2022. https://www.cnn.com/2022/11/12/politics/cbp-magnus-resignation-dhs-mayorkas
• “DHS Secretary to Biden’s Top Border Chief: Quit or Be Fired,” Politico, Nov. 11, 2022. https://www.politico.com/news/2022/11/11/dhs-secretary-bidens-top-border-chief-00066496
• “Exclusive: House Republicans Demand CBP Commissioner Resign,” Daily Caller, Nov. 1, 2022. https://dailycaller.com/2022/11/01/house-republicans-jody-hice-demand-customs-and-border-protection-cbp-commissioner-chris-magnus-resign/
• “Biden’s Top Border Chief Comes Under Internal Fire,” Politico, Oct. 17, 2022. https://www.politico.com/news/2022/10/17/customs-border-protection-chris-magnus-00061963

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22. ABIL Global: Canada and Italy

A new bilateral agreement has been in force since November 1, 2022, for Italian and Canadian citizens between the ages of 18 and 35.

The new Agreement aims to promote, among the new Italian and Canadian generations, a better knowledge of culture, society, and languages through travel experiences, work, and life in the other country.

What does the agreement stipulate?

The bilateral youth mobility agreement between Italy and Canada offers professional training opportunities to young Italian and Canadian citizens between the ages of 18 and 35 who are entering the world of work.

For 2023, there will be 2,000 young people per country who will be able to benefit from this agreement. The new agreement replaces the 2006 Memorandum of Understanding between Italy and Canada on “Working Holidays” and expands its scope, with the Italian extension of the work permit to 12 months and the introduction of new categories of participants.

What new categories are now available?

In particular, the agreement includes the following three categories:

• “Working Holiday,” for those who intend to travel to the host country and temporarily work during their stay;
• “Young worker,” for those who have already obtained an employment contract in the host country, in support of their professional development or pertaining to their previous field of study; and
• “International internship,” aimed at students enrolled in a course at a post-secondary level institute of study who have obtained an internship relevant to their field of study in the host country, as a requirement of their academic curriculum. Visa applicants must have a valid travel document with an expiration date of at least three months longer than that of the requested visa.

Interested parties must be between the ages of 18 and 35, inclusive, on the date on which the application is received.

The validity of the visa will be commensurate with the expected duration of the stay, in any case not exceeding 12 months.

Details:

• “Agreement on Youth Mobility Between Italy and Canada,” Italian Government, https://www.esteri.it/en/opportunita/scambi_giovanili/accordo-in-materia-di-mobilita-giovanile-tra-litalia-e-il-canada/

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New Publications and Items of Interest

Department of State Q&A. The Department of State released questions and answers before an American Immigration Lawyers Association liaison committee meeting held November 3, 2022. Q&A topics included consular processing, interview waivers, E visas, Foreign Affairs Manual language issues and clarifications, entertainers and artists (B visas), B-1 visas for after-sale servicing of computer software, visa reciprocity for dual nationals, immigrant intent and nonimmigrant visa refusals, Afghan immigrant visas, inadmissibility issues and visa refusals, and other issues. https://travel.state.gov/content/dam/visas/AILA/AILA-Agenda-11-03-2022.pdf

Webinar on immigration reform in 2023. eCornell will host a free webinar on Tuesday, December 6, 2022, from 1-2 pm ET about the chances for immigration reform in 2023. Can lessons learned during the last round of reform be applied to future debates? Charles Kamasaki, author of “Immigration Reform: The Corpse That Will Not Die,” will discuss this topic with Cornell Law School professor Stephen Yale-Loehr and Wall Street Journal immigration reporter Michelle Hackman. The webinar is co-sponsored by the Cornell Migrations Initiative, the Cornell Law School Immigration Law and Policy Research Program, and Catholic Charities of Tompkins and Tioga Counties. For more information or to register, see https://ecornell.cornell.edu/keynotes/overview/K120622/. Those who register will have access to the recording afterwards regardless of whether they attend.

Webinar on immigration planning. WR Immigration attorneys Laura Bloniarz and Audrey Lustgarten will lead a presentation with a global immigration perspective geared for global mobility professionals. “Immigration Planning: Preparing for a Global Recession?” will be held Tuesday, December 13, 2022, at 11 a.m. PT. https://wolfsdorf.com/immigration-planning-preparing-for-a-global-recession/

Webinar on 2022 H-2A final rule. On November 17, 2022, the Department of Labor’s Office of Foreign Labor Certification (OFLC) hosted a public webinar to educate stakeholders, program users, and others on changes to the H-2A program made by the 2022 H-2A final rule. The presentation provided a detailed overview of how the 2022 H-2A rule will affect filing and processing, including preparations to the FLAG filing system, reviewing changes to ETA Forms 790/790A and 9142A, calculating surety bonds, and additional topics. The webinar was recorded and posted on the OFLC website along with presentation materials for future reference. https://www.dol.gov/agencies/eta/foreign-labor

Report on backlogs. The Cato Institute has published a briefing paper, “Processing Backlogs in the U.S. Immigration System: Describing the Scale of the Problem.” According to Cato, the paper summarizes basic facts about immigration backlogs, which the paper says comprise roughly 24 million cases across the U.S. government. Backlogs are not isolated within certain portions of the system but are rather a “systemic and growing problem for all four departments responsible for executing U.S. immigration law,” the paper says. It also shows that except for visa processing, backlogs have not arisen primarily from COVID-19 shutdowns but instead are “a consequence of inefficient agency processes that have caused wait times and backlogs to grow during the past decade. This also means that the agencies culpable for the problem will have the most important roles to play in fixing it.” https://www.cato.org/briefing-paper/processing-backlogs-us-immigration-system-describing-scale-problem

E-Verify free webinars. U.S. Citizenship and Immigration Services announced topics for upcoming E-Verify and Form I-9 webinars, including E-Verify for Existing Users, E-Verify for Web Services Users, E-Verify in 30, E-Verify Overview, Employee Rights, Employer Responsibilities, Federal Contractor E-Verify, Form I-9, and myE-Verify. Customized sessions are also available. All webinars are eligible for professional development credits (PDCs) through the Society of Human Resource Management and the Human Resource Certification Institute except for E-Verify in 30 and myE-Verify. For more information or to register, see https://www.e-verify.gov/about-e-verify/e-verify-webinars. To arrange a topic, date, and time for a customized webinar, email [email protected].

Immigrant and Employee Rights Section free webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars for the public. https://www.justice.gov/crt/webinars

Agency Twitter accounts:

• EOIR: @DOJ_EOIR
• ICE: @ICEgov
• Study in the States: @StudyinStates
• USCIS: @USCIS

E-Verify webinar schedule. E-Verify released its calendar of webinars. https://www.e-verify.gov/calendar-field_date_and_time/month Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

WR Immigration has published several new blog posts: “Immigration Planning: Preparing for a Global Recession?,” https://wolfsdorf.com/immigration-planning-preparing-for-a-global-recession/; and “EB-5 Project Due Diligence, After the EB-5 Reform and Integrity Act of 2022,” https://wolfsdorf.com/eb-5-project-due-diligence-after-the-eb-5-reform-and-integrity-act-of-2022/

Klasko Immigration Law Partners, LLP, has released Episode 31 in its Statutes of Liberty podcast series: “H-1B Layoff Information for Employees.” With a large wave of layoffs reported in November 2022, many H-1B visa holders worry about what their next steps should be. In this podcast episode, Anu Nair speaks with partner Bill Stock and senior associate Maria Mihaylova to discuss the potential impact of recent layoffs occurring in different industries and how they affect H-1B employees

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) was quoted by Law360 in “Feds Grant Ukrainians, Afghans Immediate Work Authorization.” Mr. Kuck, who helps lead the IMMPact Litigation team representing Ukrainians in a lawsuit, said he was pleased that USCIS changed its policy. However, he said his clients also sought a court order forcing USCIS to repay Ukrainians who had already paid the work permit application fee. “We are exceptionally happy that USCIS finally did almost the right thing [and] we look forward to them doing the complete right thing shortly, or litigation will continue,” he said. The litigation had not covered Afghans who fled Afghanistan, but Mr. Kuck said his team intended to revise the case to include Afghans based on a September 2021 congressional measure that entitled Afghans to refugee benefits. https://www.law360.com/articles/1552063/feds-grant-ukrainians-afghans-immediate-work-authorization (registration required)

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) was quoted by the Times of India in “Laid-Off Indian H-1B Workers Plead for Help as Clock Ticks.” He noted that when an H-1B worker is laid off or terminated, they get a 60-day grace period that allows them to remain in the H-1B status to find a new job. “The new employer must file the H-1B within the 60-day period. This 60-day period may not be enough to find a new job. The H-1B worker should negotiate that their employment with the company that is terminating them be extended as long as possible as the 60-day grace period will only trigger when the paid employment is terminated.” An Indian worker, he said, is disadvantaged because of green card backlogs caused by per-country limits. Mr. Mehta said that the Biden administration can help by changing the 60-day grace period rule to allow more time for H-1B workers to remain in the United States, but he noted that a rule change would take time. “The administration must also be inclined to do this,” he said. https://timesofindia.indiatimes.com/business/india-business/laid-off-indian-h-1b-workers-plead-for-help-as-clock-ticks/articleshow/95497003.cms

Mr. Mehta and Kaitlyn Box co-authored a new blog posting: “Layoffs Will Hurt Nonimmigrant Workers the Most, Especially Indian Born, But the Biden Administration Can Provide Relief.” http://blog.cyrusmehta.com/2022/11/layoffs-will-hurt-nonimmigrant-workers-the-most-especially-indian-born-but-the-biden-administration-can-provide-relief.html

Mr. Mehta authored a new blog posting: “Why the AILA Law Journal Is Important.” http://blog.cyrusmehta.com/2022/11/3907.html

William Stock (bio: https://www.abil.com/abil-lawyers/william-stock/) has authored a new blog post: “I Have an H-1B Visa and Just Got Laid Off. What Do I Need to Know?”

WR Immigration has posted a new webinar: “H-1B Cap Season—How the Current Economic Climate Will Affect This Season.” Topics include the current labor and recruiting environment; key H-1B registration, lottery, and petition filing timelines; understanding current trends; and organization strategies and tips. https://wolfsdorf.com/webinar-h-1b-cap-season-how-the-current-economic-climate-will-affect-this-season/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the Dallas Morning News in “Texas AG Ken Paxton’s Lawsuits Stymie Biden Agenda on Immigration and Healthcare.” He said, “For the time being, it seems like Paxton is as important as the [federal government] in deciding what immigration policy is implemented these days. Every lawsuit seems to end up in a temporary injunction prohibiting the Biden administration from changing immigration policy.” https://www.dallasnews.com/news/politics/2022/12/02/texas-ag-ken-paxtons-lawsuits-stymie-biden-agenda-on-immigration-and-healthcare/ (registration required)

Mr. Yale-Loehr was quoted by the Wall Street Journal in “Supreme Court Considers Challenge to Biden Policy Curbing Immigration Arrests.” He said, “The stakes are quite high. If the states win here, that means effectively that immigration policy will be run by the federal courts rather than the administration.” https://www.wsj.com/articles/supreme-court-considers-challenge-to-biden-policy-curbing-immigration-arrests-11669692774 (subscription required)

Mr. Yale-Loehr was quoted by Inside Higher Ed in “Should Fine Arts and Communications Qualify as STEM Degrees?” Regarding colleges aligning their course outcomes to the Department of Homeland Security’s list of qualifying fields and requirements for science, technology, engineering, and mathematics (STEM) degrees, Mr. Yale-Loehr said, “I do not consider this to be gaming the system.” Noting that the White House “very vigorously” consulted with numerous government agencies to ensure that additions to the list of STEM-designated degrees were appropriate, he said, “Ultimately Congress should decide how long international students should be able to work after they graduate and whether they should limit it to certain fields or have the same limit applied to all fields. But absent Congress’s ability to reform our broken immigration system, it is up to the agencies to decide how to interpret the existing law.” Many of the newly added qualifying fields fall within conventional STEM expectations, but others live within the intersection of science and the arts. Mr. Yale-Loehr also noted that efforts to extend or curb work authorization for international students on F-1 visas in STEM fields have a “long and tortured history.” Finally, he said, “More and more these days, [the United States] needs STEM workers to help innovate, and offering those degree holders who have serious STEM credentials an opportunity to work in the United States for three years is appropriate. But Congress ultimately should reform our broken immigration system, and as part of that effort they should take up this issue.” https://www.insidehighered.com/news/2022/11/29/fine-arts-communications-degrees-qualify-stem-immigrants

Mr. Yale-Loehr was quoted by Roll Call in “Supreme Court to Hear Argument Over Biden Immigration Priorities.” He said, “In the immigration context, courts have traditionally deferred to the executive branch because immigration touches on sovereignty and foreign relations. But if the high court greenlights the state lawsuit against the administration’s immigration enforcement priorities, “it means that the federal government is no longer getting the benefit of the doubt” in this context, he noted. A ruling that sides with the states on that issue, depending on how the justices write the opinion, could usher in a “major sea change” over how federal agencies establish internal guidance, he said: “It effectively gives states the power to overrule federal policy on immigration and allow states to challenge anything they want, not just in immigration but in other areas as well. If Congress says that you have to detain certain people who have committed certain criminal violations, but does not give the administration enough money to actually detain them, what is the administration supposed to do? I think it’s going to be a real conundrum, both for Congress and for the administration, if the Supreme Court rules in favor of Texas in this case on the merits.” https://rollcall.com/2022/11/28/supreme-court-to-hear-argument-over-biden-immigration-priorities/

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. Agencies Release Hurricane Ian-Related Guidance – The Department of Labor’s Office of Foreign Labor Certification and the Department of Homeland Security, including U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, released guidance related to the effects of Hurricane Ian.

2. USCIS Extends Green Card Validity to 24 Months for Renewals – Lawful permanent residents who properly file Form I-90, Application to Replace Permanent Resident Card, to renew an expiring or expired green card may receive this extension.

3. Draft FAQs Released on H-2A Temporary or Seasonal Need Assessments, Comments Requested – The draft guidance pertains to the Office of Foreign Labor Certification’s assessment of the temporary or seasonal nature of an employer’s need for agricultural labor or services during review of the Form ETA-9142A, H-2A Application for Temporary Employment Certification.

4. Temporary Protected Status Extended and Redesignated for Burma (Myanmar) – The Department of Homeland Security is extending TPS for Burma (Myanmar) for an additional 18 months, from November 26, 2022, through May 25, 2024. DHS also redesignated Burma for TPS for the same reason, granting eligibility to Burmese nationals (and individuals having no nationality who last habitually resided in Burma) residing in the United States as of September 25, 2022.

5. Temporary Waiver of 60-Day Rule Extended for Civil Surgeon Signatures on Form I-693 – The waiver, which was effective until September 30, 2022, has been extended to March 31, 2023.

6. USCIS Stops Accepting CW-1 Petitions From Employers Under Disaster Recovery Workforce Act – Starting October 1, 2022, construction and extraction occupations are prohibited under the CW-1 program, except for long-term workers. USCIS said it continues to accept CW-1 petitions other than those seeking approval under the Disaster Recovery Workforce Act.

7. Biden Plans Executive Action to Protect DACA Recipients – According to reports, President Biden plans to take executive action to protect Deferred Action for Childhood Arrivals (DACA) “Dreamers” from removal if the Fifth Circuit Court of Appeals rules against DACA, which appears imminent.

8. USCIS Director, CIS Ombudsman Hold ‘Fireside Chat’ – The conversation included discussion of processing times; backlog reduction efforts; customer service; funding and congressional appropriations; the Ombudsman’s 2022 Annual Report to Congress; recommendations on USCIS’s fee-for-service funding model; and types of assistance the Ombudsman’s office provides to the public.

9. Problems Reported With Emergency ‘Satisfactory Departure’ Requests – According to reports, U.S. Citizenship and Immigration Services (USCIS) has told some practitioners that their ability to grant multiple satisfactory departure requests ended in April, but the agency has acknowledged that their public website has not yet been updated.

10. E-Verify Restores Client Company Enrollments – E-Verify employer agents can once again create and submit client enrollments.

11. COVID-Related Restrictions Expected to Ease at Canadian Border – According to unofficial reports, by the end of September, Canada may drop its COVID-19 vaccine requirement for travelers entering Canada from the United States via the Detroit-Windsor border. Canada may also end COVID-19 for airport arrivals and no longer require filling out the ArriveCan app.

12. DHS Publishes Final Rule Implementing Court’s Vacatur of Two Rules on Asylum Applications, Interviews, and Work Authorization – The court decision requires U.S. Citizenship and Immigration Services to process all initial employment authorization document applications from asylum applicants within 30 days.

13. DOJ Secures Settlements With Four Companies for Discriminatory Job Advertising on College Recruiting Platforms – DOJ said that during its investigation, the agency learned about dozens of “facially discriminatory advertisements employers posted on Georgia Tech’s job recruiting platform as well as other platforms operated by colleges across the United States.”

14. USCIS Is Reviewing Policy Changes Related to Military Naturalization – USCIS will soon provide guidance and instructions for Calixto class members who may be eligible to apply for military naturalization.

15. Congress Passes Bill to Conduct Employment-Related Study of Foreign-Credentialed Immigrants and Refugees – Congress passed the “Bridging the Gap for New Americans Act” (S. 3157) to require the Department of Labor to submit to Congress a study on the factors affecting employment opportunities for certain individuals with professional credentials obtained in a non-U.S. country, specifically individuals who are lawfully present noncitizens or naturalized U.S. citizens. The study will include policy recommendations for better enabling such individuals to obtain skill-appropriate employment in the United States.

16. Indian Green Card Seekers Ask Court to End Federal Policy Placing Applications in ‘Legal Limbo’ – Plaintiffs argue that U.S. Citizenship and Immigration Services’ and the Department of State’s requirement that a visa must be available at both the time of filing and of approval of the application is wrong.

17. USCIS Implements Next Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions – This premium processing expansion only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver.

18. USCIS Reaches H-2B Cap for First Half of FY 2023 – U.S. Citizenship and Immigration Services announced that it has received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2023.

19. Witnesses Testify at Senate Hearing on Importance of Immigrant Workers to U.S. Health Care System – One witness urged Congress to pass two pending bills: the Conrad State 30 and Physician Access Reauthorization Act, S. 1810 (H.R. 3541), and the Healthcare Workforce Resilience Act, S. 1024 (H.R. 2255).

20. Visa Bulletin for October Includes Several Retrogressions, Other Updates – The Department of State’s Visa Bulletin for October 2022 includes several updates, including retrogressions in the China-mainland born EB-5 unreserved categories and in the India employment second preference (E2) final action and application filing dates.

21. DHS Issues Final Rule on Public Charge Ground of Inadmissibility – DHS “will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

22. USCIS Releases Revised Forms I-589 and I-765 – U.S. Citizenship and Immigration Services is releasing revised editions of Form I-589, Application for Asylum and for Withholding of Removal, and Form I-765, Application for Employment Authorization.

23. DHS Announces Extension and Re-Registration Process for Current Venezuela TPS Beneficiaries, Special Student Relief – The Department of Homeland Security has taken several actions to provide relief for Venezuelans in the United States.

24. USCIS Releases FY 2023 Employment-Based Adjustment of Status FAQs – U.S. Citizenship and Immigration Services released updated fiscal year 2023 frequently asked questions on employment-based adjustment of status.

25. ETA Requests Comments on Proposed Revisions to Prevailing Wage Determination Application Forms – The Department of Labor’s Employment and Training Administration is requesting comments by October 11, 2022, on proposed revisions to the ETA-9141 and ETA-9165 forms.

26. Arlington Immigration Court Relocating to Annandale; EOIR to Open Court in Sterling – The Executive Office for Immigration Review announced several immigration court developments.

27. ABIL Global: Peru – This article discusses the Artist visa for foreigners coming to perform artistic activities in Peru.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – October 2022

1. Agencies Release Hurricane Ian-Related Guidance

The Department of Labor’s Office of Foreign Labor Certification (OFLC) and the Department of Homeland Security (DHS), including U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), released guidance related to the effects of Hurricane Ian.

OFLC

OFLC issued disaster guidance on September 29, 2022, regarding reasonable case accommodations in light of the damage done by Hurricane Ian.

Among other things, the guidance notes that the most effective means of communicating with OFLC is through the Foreign Labor Application Gateway (FLAG) or PERM Case Management System for each OFLC program. For employers or authorized attorneys or agents who are unable to communicate with OFLC through FLAG or the PERM system, the guidance provides alternative methods of contacting OFLC.

DHS

DHS issued guidance on September 28, 2022, reminding the public that ICE and CBP provide emergency assistance to individuals regardless of immigration status, and that DHS officials do not pose as individuals providing emergency-related information as part of any enforcement activity. Further, sites providing emergency response and relief are considered “protected areas.” DHS said that to the fullest extent possible, ICE and CBP “do not conduct immigration enforcement activities at protected areas such as along evacuation routes, sites used for sheltering or the distribution of emergency supplies, food or water, or registration sites for disaster-related assistance or the reunification of families and loved ones.”

Details:

• OFLC guidance, Sept. 29, 2022, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Hurricane%20Ian%20Disaster%20Guidance%20-%209-29-2022.pdf
• DHS guidance, Sept. 28, 2022, https://www.dhs.gov/news/2022/09/28/dhs-statement-safety-and-enforcement-during-hurricane-ian

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2. USCIS Extends Green Card Validity to 24 Months for Renewals

Effective September 26, 2022, U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of permanent resident cards (green cards) to 24 months for lawful permanent residents who file Form I-90, Application to Replace Permanent Resident Card.

Lawful permanent residents who properly file Form I-90 to renew an expiring or expired green card may receive this extension. Form I-90 receipt notices had previously provided a 12-month extension of the validity of a green card. USCIS said it has updated the language on Form I-90 receipt notices to extend this validity to 24 months for individuals with a newly filed Form I-90.

On September 26, 2022, USCIS began printing amended receipt notices for individuals with a pending Form I-90. These receipt notices can be presented with an expired green card as evidence of continued status, USCIS said.

Details:

• USCIS release, Sept. 28, 2022. https://www.uscis.gov/newsroom/alerts/uscis-extends-green-card-validity-extension-to-24-months-for-green-card-renewals

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3. Draft FAQs Released on H-2A Temporary or Seasonal Need Assessments, Comments Requested

The Department of Labor’s (DOL) Employment and Training Administration (ETA) published draft frequently asked questions (FAQs) for the H-2A temporary agricultural program, “Round 17: Temporary or Seasonal Need Assessments; Relevant Information or Factors Related to H-2A Labor Contractors (H-2ALCs) Operating in an Area of Intended Employment (AIE) Where Agricultural Production May Occur Year-Round.”

The draft guidance pertains to the Office of Foreign Labor Certification’s (OFLC) assessment of the temporary or seasonal nature of an employer’s need for agricultural labor or services during review of the Form ETA-9142A, H-2A Application for Temporary Employment Certification.

ETA invites written comments from the public by October 26, 2022, on the draft FAQs to further inform the development of guidance regarding OFLC’s assessment of temporary or seasonal need for the H-2A program.

Details:

• ETA notice, 87 Fed. Reg. 58374 (Sept. 26, 2022). https://www.govinfo.gov/content/pkg/FR-2022-09-26/pdf/2022-20781.pdf

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4. Temporary Protected Status Extended and Redesignated for Burma (Myanmar)

The Department of Homeland Security (DHS) is extending temporary protected status (TPS) for Burma (Myanmar) for an additional 18 months, from November 26, 2022, to May 25, 2024, due to a military coup in 2021 that has resulted in “extraordinary and temporary conditions in Burma that prevent individuals from safely returning.” DHS also redesignated Burma for TPS for the same reason, allowing eligibility to Burmese nationals (and individuals having no nationality who last habitually resided in Burma) residing in the United States as of September 25, 2022.

Current beneficiaries re-registering under the extension of TPS for Burma must do so during the 60-day re-registration period that began September 27, 2022, and runs through November 26, 2022, to ensure they keep their TPS and work authorization without a gap. DHS said it recognizes that not all re-registrants may receive new employment authorization documents (EADs) before their current EADs expire on November 25, 2022, so the agency is automatically extending the validity of EADs previously issued under the TPS designation of Burma through November 25, 2023.

Details:

• USCIS release, Sept. 26, 2022. https://www.uscis.gov/newsroom/news-releases/secretary-mayorkas-extends-and-redesignates-temporary-protected-status-for-burma
• Extension and Redesignation of Burma (Myanmar) for Temporary Protected Status, 87n Fed. Reg. 58515 (Sept. 27, 2022). https://www.govinfo.gov/content/pkg/FR-2022-09-27/pdf/2022-20784.pdf

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5. Temporary Waiver of 60-Day Rule Extended for Civil Surgeon Signatures on Form I-693

U.S. Citizenship and Immigration Services (USCIS) has extended its temporary waiver of the 60-day rule for civil surgeon signatures on Form I-693, Report of Medical Examination and Vaccination Record. The waiver, which was effective until September 30, 2022, has been extended to March 31, 2023.

The waiver applies to all Forms I-693 associated with applications for underlying immigration benefits that have not been adjudicated, regardless of when the application was submitted to USCIS or when a civil surgeon signed the Form I-693.

USCIS said the waiver will help applicants who have been affected by the COVID-19 pandemic and related processing delays, which have sometimes delayed immigration medical examinations, as well as applicants, including Afghan nationals evacuated under Operation Allies Welcome, who completed immigration medical examinations but could not apply for adjustment of status within 60 days of a civil surgeon signing their Form I-693.

Details:

• USCIS alert, Sept. 29, 2022, https://www.uscis.gov/newsroom/alerts/extension-of-temporary-waiver-of-60-day-rule-for-civil-surgeon-signatures-on-form-i-693

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6. USCIS Stops Accepting CW-1 Petitions From Employers Under Disaster Recovery Workforce Act

U.S. Citizenship and Immigration Services (USCIS) said it will no longer accept CW-1 petitions filed by employers in the Commonwealth of the Northern Mariana Islands (CNMI) under the Disaster Recovery Workforce Act as of October 1, 2022.

Starting October 1, 2022, construction and extraction occupations are prohibited under the CW-1 program, except for long-term workers. USCIS said it will continue to accept CW-1 petitions other than those seeking approval under the Disaster Recovery Workforce Act.

Details:

• USCIS alert, Sept. 28, 2022. https://www.uscis.gov/newsroom/alerts/uscis-stops-accepting-cw-1-petitions-under-the-disaster-recovery-workforce-act

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7. Biden Plans Executive Action to Protect DACA Recipients

According to reports, President Biden plans to take executive action to protect Deferred Action for Childhood Arrivals (DACA) “Dreamers” from removal if the Fifth Circuit Court of Appeals rules against DACA, which appears imminent. Such an order may take the form of allowing DACA recipients to remain in the United States if they pose no public safety or security threat.

A longer-term solution would require Congress to pass legislation, which is unlikely in the near term. Almost 700,000 DACA recipients could lose their work authorization otherwise.

Details:

• “Biden White House Preparing to Take Action to Protect DACA ‘Dreamers,’ ” NBC News, Sept. 29, 2022. https://www.nbcnews.com/politics/immigration/biden-white-house-preparing-take-executive-action-protect-daca-dreamer-rcna49864

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8. USCIS Director, CIS Ombudsman Hold ‘Fireside Chat’

U.S. Citizenship and Immigration Services (USCIS) Director Ur Jaddou and Citizenship and Immigration Services (CIS) Ombudsman Phyllis Coven held a “fireside chat” on September 21, 2022. They discussed challenges and accomplishments from fiscal year (FY) 2022 and looked ahead to FY 2023.

The conversation included discussion of processing times; backlog reduction efforts; customer service; funding and congressional appropriations; the Ombudsman’s 2022 Annual Report to Congress; recommendations on USCIS’s fee-for-service funding model; and types of assistance the Ombudsman’s office provides to the public.

Details:

• Fireside chat (video). https://www.youtube.com/watch?v=Z439ttVjmho
• USCIS responses to the Ombudsman’s Annual Reports to Congress. https://www.uscis.gov/tools/ombudsman-liaison/uscis-responses-to-annual-reports-to-congress

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9. Problems Reported With Emergency ‘Satisfactory Departure’ Requests

According to reports, U.S. Citizenship and Immigration Services (USCIS) has told some practitioners that the ability to grant multiple “satisfactory departure” requests ended in April but acknowledged that the agency’s public website has not yet been updated. The website still says that “if an emergency (such as COVID-19) prevents the departure of a VWP [Visa Waiver Program] entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days.” For those who were already granted satisfactory departure but were unable to depart within the 30-day period because of COVID-19-related issues, “USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center,” the website says.

Practitioners state that this issue has been raised with USCIS and U.S. Customs and Border Protection liaisons.

Details:

• “USCIS Response to COVID-19” (scroll to “Extension of Stay/Change of Status Filing Delays Caused by Extraordinary Circumstances Related to COVID-19”). https://www.uscis.gov/about-us/uscis-response-to-covid-19

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10. E-Verify Restores Client Company Enrollments

E-Verify announced on September 26, 2022, that it has resolved technical issues with client enrollments. According to E-Verify, employer agents can once again create and submit enrollments, and they will not experience any change in the process to enroll a new client.

For client enrollments pending registration, employer agents will need to re-send the Memorandum of Understanding (MOU) email to the previously identified MOU signatory or upload a signed signature page on the client’s behalf to complete the enrollment process.

Details:

• E-Verify notice. https://www.e-verify.gov/about-e-verify/whats-new/e-verify-client-company-enrollment-restored

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11. COVID-Related Restrictions Expected to Ease at Canadian Border

Canada has dropped its COVID-19 vaccine requirement for travelers entering Canada from the United States via the Detroit-Windsor border. That border crossing handles more than 40,000 travelers each day, including commuters, truck drivers, and tourists. Canada is also ending COVID-19 vaccine requirements for airport arrivals and no longer requires filling out the ArriveCan app. Some provinces or individual businesses may continue to limit discretionary activities, such as visits to restaurants, bars, gyms, and retail shops, to individuals who can provide proof of COVID-19 vaccination.

It is unclear whether the United States will also drop similar land-border vaccine requirements. At present, all nonimmigrant, non-U.S. citizen air travelers to the United States must be fully vaccinated and provide proof of vaccination status before boarding an airplane to the United States. Fully vaccinated foreign nationals may enter the United States at land ports of entry (POEs) and ferry terminals. Fully vaccinated travelers do not need to provide a pre-entry COVID-19 test result to enter the United States by air, land, or sea. Fully vaccinated foreign travelers can travel to the United States across the Northern and Southwest borders with Canada (and Mexico). U.S. citizens and lawful permanent residents do not need to provide proof of vaccination status at land POEs and ferry terminals.

A group of Canadian legislators and border-area mayors from both countries published a letter on September 20, 2022, to Prime Minister Justin Trudeau and President Joe Biden asking them to remove the border restrictions.

Details:

• “Canada to Lift COVID Vaccine Requirement for Travelers At Border,” Detroit News, Sept. 21, 2022, https://www.detroitnews.com/story/news/local/detroit-city/2022/09/21/canada-lift-covid-vaccine-requirement/8070492001/
• “Open Letter: President Joe Biden and Canadian Prime Minister Justin Trudeau,” Sept. 20, 2022, https://twitter.com/jimdiodati/status/1572253493968408576/photo/1
• Travel to Canada: Requirements for COVID-19 Vaccinated Travellers, https://travel.gc.ca/travel-covid/travel-restrictions/covid-vaccinated-travellers-entering-canada
• COVID-19 Information – Canada, U.S. Embassy & Consulates in Canada, Sept. 9, 2022, https://ca.usembassy.gov/covid-19-information-canada-3/
• COVID-19: Travel, Testing and Borders, https://travel.gc.ca/travel-covid

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12. DHS Publishes Final Rule Implementing Court’s Vacatur of Two Rules on Asylum Applications, Interviews, and Work Authorization

The Department of Homeland Security published a final rule on September 22, 2022, that removes changes to regulatory text resulting from two final rules issued in June 2020, which were vacated by a federal district court in February 2022 in Asylumworks v. Mayorkas. The court decision requires U.S. Citizenship and Immigration Services (USCIS) to process all initial employment authorization document (EAD) applications from asylum applicants within 30 days. The decision vacated a June 22, 2020, rule that removed that requirement.

Details:

• DHS final rule, 87 Fed. Reg. 57795 (Sept. 22, 2022), https://www.govinfo.gov/content/pkg/FR-2022-09-22/pdf/2022-20228.pdf
• USCIS announcement (Sept. 21, 2022),
• Rosario Class Action, USCIS (Sept. 19, 2022), https://www.uscis.gov/laws-and-policy/other-resources/class-action-settlement-notices-and-agreements/rosario-class-action

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13. DOJ Secures Settlements With Four Companies for Discriminatory Job Advertising on College Recruiting Platforms

On September 21, 2022, the Department of Justice (DOJ) announced that it entered into another four settlements to resolve claims that companies discriminated against non-U.S. citizens by posting job opportunities with unlawful citizenship status restrictions on college job recruiting platforms. The four agreements add to DOJ’s recent settlements with 16 other companies to resolve similar claims, bringing the total civil penalty amount for all 20 employers to over $1.1 million. The latest four companies include CarMax, Axis Analytics, Capital One Bank, and Walmart.

DOJ said its involvement began after a Georgia Institute of Technology (Georgia Tech) student, who was a lawful permanent resident at the time, filed a discrimination complaint with the Civil Rights Division’s Immigrant and Employee Rights Section. The student’s complaint alleged that Capital One Bank restricted a paid internship opportunity only to U.S. citizens when it posted the job on a Georgia Tech job recruitment platform. DOJ said that during its investigation, the agency learned about “dozens of other facially discriminatory advertisements employers posted on Georgia Tech’s job recruiting platform as well as other platforms operated by colleges across the United States.”

Details:

• DOJ release, Sept. 21, 2022, https://www.justice.gov/opa/pr/justice-department-secures-settlements-carmax-axis-analytics-capital-one-bank-and-walmart

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14. USCIS Is Reviewing Policy Changes Related to Military Naturalization

On September 22, 2022, U.S. Citizenship and Immigration Services (USCIS) was notified of a settlement agreement between the U.S. Army and class members of the civil action in Calixto v. Department of the Army, Civ. A. No. 18-1551 (PLF) (D.D.C.). The Calixto settlement agreement affects USCIS’s military naturalization policies, and USCIS said it is reviewing policy changes based on the terms of this settlement agreement. USCIS will soon provide guidance and instructions for Calixto class members who may be eligible to apply for military naturalization.

Details:

• USCIS alert, Sept. 24, 2022, https://www.uscis.gov/newsroom/alerts/uscis-reviewing-military-naturalization-policy-based-on-settlement-agreement-in-calixto-v-department

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15. Congress Passes Bill to Conduct Employment-Related Study of Foreign-Credentialed Immigrants and Refugees

On September 19, 2022, Congress passed the “Bridging the Gap for New Americans Act” (S. 3157) to require the Department of Labor to submit to Congress a study on the factors affecting employment opportunities for certain individuals with professional credentials obtained in a non-U.S. country, specifically individuals who are lawfully present noncitizens or naturalized U.S. citizens. The study will include policy recommendations for better enabling such individuals to obtain skill-appropriate employment in the United States.

The study is to include: (1) an analysis of the employment history of applicable immigrants and refugees admitted to the United States during the five-year period immediately preceding the date of enactment; (2) an assessment of any barriers that prevent applicable immigrants and refugees from using occupational experience obtained outside the United States to obtain employment in the United States; (3) an analysis of available public and private resources assisting applicable immigrants and refugees who have professional experience and qualifications obtained outside of the United States to obtain skill-appropriate employment in the United States; and (4) policy recommendations for better enabling applicable immigrants and refugees who have professional experience and qualifications obtained outside of the United States to obtain skill-appropriate employment in the United States.

Details:

• 3157, https://www.congress.gov/bill/117th-congress/senate-bill/3157

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16. Indian Green Card Seekers Ask Court to End Federal Policy Placing Applications in ‘Legal Limbo’

A group of green card seekers from India filed a motion for a temporary restraining order on September 15, 2022, in Datta v. Jaddou, asking a U.S. district court in the state of Washington to end a federal policy that pushes their applications into a “legal limbo.”

They argue that U.S. Citizenship and Immigration Services’ and the Department of State’s requirement that a visa must be available at both the time of filing and of approval of the application is wrong. Brad Banias, an attorney for the plaintiffs, said, “If there is a visa available at the time they filed for adjustment of status, that’s all that matters.”

Details:

• “Green Card Hopefuls Want End to Policy Creating ‘Legal Limbo,’ ” Bloomberg Law, Sept. 16, 2022, https://news.bloomberglaw.com/daily-labor-report/green-card-hopefuls-want-end-to-policy-creating-legal-limbo

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17. USCIS Implements Next Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on September 15, 2022, that it is implementing the next phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.

This phase only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW), USCIS explained.

USCIS is now accepting Form I-907, Request for Premium Processing Service, requests for:

• E13 multinational executive and manager petitions received on or before January 1, 2022; and
• E21 NIW petitions received on or before February 1, 2022.

USCIS has 45 days to take an adjudicative action on cases that request premium processing for these newly included Form I-140 classifications.

Details:

• USCIS alert, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-next-phase-of-premium-processing-for-certain-previously-filed-eb-1-and-eb-2-form

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18. USCIS Reaches H-2B Cap for First Half of FY 2023

U.S. Citizenship and Immigration Services (USCIS) announced on September 14, 2022, that it has received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year (FY) 2023. September 12, 2022, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2023. USCIS said it will reject new cap-subject H-2B petitions received after September 12, 2022, that request an employment start date before April 1, 2023.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

• Current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment;
• Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.

Details:

USCIS alert, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

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19. Witnesses Testify at Senate Hearing on Importance of Immigrant Workers to U.S. Health Care System

On September 14, 2022, several witnesses testified at a hearing held by the Senate Subcommittee on Immigration, Citizenship, and Border Safety, “Flatlining Care: Why Immigrants Are Crucial to Bolstering Our Health Care.” Among them were Sarah K. Peterson, Principal Attorney, SPS Immigration PLLC, who testified about “smart immigration reform” to allow International Medical Graduates (IMGs,) international nurses, and other healthcare professionals to help address the United States’ “ongoing shortage of access to medical care, ensuring that all Americans are able to access basic, primary medical care regardless of where they live in the United States.”

Among other things, Ms. Peterson urged Congress to pass two pending bills: the Conrad State 30 and Physician Access Reauthorization Act, S. 1810 (H.R. 3541), and the Healthcare Workforce Resilience Act, S. 1024 (H.R. 2255). She said that passage of these bills would increase access to medical care and bring relief to underserved populations, and to J-1 physicians and international nurses. She noted, for example, that the Conrad bill would provide “cap gap” relief for J-1 trainees, similar to that provided to F-1 students working in Optional Practical Training status, whose work authorization expires before October 1 and whose employers have filed a cap-subject H-1B petition selected in the registration period. “Expanding this relief to physicians would provide employers with quicker access to necessary health care and allow these foreign national physicians to change status in the United States, without having to depart the United States, obtain a visa, and only be permitted to re-enter the U.S. months later. Cap gap work-authorization for U.S.-trained physicians would add a quarter of a year or more of badly needed physician coverage and is smart immigration reform,” she said.

Details:

• Hearing video and testimony, https://www.judiciary.senate.gov/meetings/flatlining-care-why-immigrants-are-crucial-to-bolstering-our-health-care-workforce

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20. Visa Bulletin for October Includes Several Retrogressions, Other Updates

The Department of State’s (DOS) Visa Bulletin for October 2022, the first month of the new fiscal year, includes several updates:

• Scheduled expiration of employment fourth preference (SR) Religious Workers category. Unless Congress extends this category, no SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight September 29, 2022. Visas issued before that date will be valid only until that date, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by midnight September 29, 2022.
• Retrogression of China-mainland born final action date and imposition of India final action date in the employment-based fifth preference unreserved categories (including C5, T5, I5, and R5). The final action date for the China-mainland born EB-5 unreserved categories for immigrant investors will retrogress in October due to heavy demand for numbers. Also, due to India demand, a final action date for October will be imposed in the EB-5 unreserved categories.
• Retrogression of India employment second preference (EB-2) final action and application filing dates for October. Rapid forward movements of the India EB-2 final action and application filing dates during FY 2022 were made to maximize number use under the unprecedented high employment limit of 281,507. As a result, heavy applicant demand has materialized. Coupled with significantly lower visa number availability for India EB-2 for FY 2023 as compared with FY 2022, DOS said corrective action was required to keep number use within the maximum allowed under the FY 2023 annual limits.
• Visa availability in the employment fourth category. High demand in this category may necessitate the establishment of a worldwide final action date in the coming months, DOS said.

Details:

• Visa Bulletin for October 2022, Dept. of State. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-october-2022.html

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21. DHS Issues Final Rule on Public Charge Ground of Inadmissibility

The Department of Homeland Security (DHS) is amending its regulations, effective December 23, 2022, regarding determinations of whether noncitizens are inadmissible to the United States because they are likely at any time to become a public charge.

Secretary of Homeland Security Alejandro Mayorkas said DHS “will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.” These benefits include Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

Under the final rule, DHS will determine that a noncitizen is likely to become a public charge if the noncitizen is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

On August 14, 2019, DHS issued a different rule on this topic, which is no longer in effect.

Details:

• DHS final rule, 87 Fed. Reg. 55472 (Sept. 9, 2022).
• DHS news release, Sept. 8, 2022. https://www.uscis.gov/newsroom/news-releases/dhs-publishes-fair-and-humane-public-charge-rule

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22. USCIS Releases Revised Forms I-589 and I-765

U.S. Citizenship and Immigration Services (USCIS) is releasing revised editions of Form I-589, Application for Asylum and for Withholding of Removal, and Form I-765, Application for Employment Authorization.

Effective November 7, 2022, USCIS will only accept editions of these forms dated 07/26/22. Until then, applicants can submit either the new or previous editions of these forms. USCIS cautioned, however, that “previous editions contain various instructions that have been rendered obsolete in light of the Asylumworks vacatur.” In that case, a U.S. district court vacated two rules.

Details:

• USCIS alert, Sept. 7, 2022. https://www.uscis.gov/newsroom/alerts/uscis-released-revised-editions-of-forms-i-589-and-i-765

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23. DHS Announces Extension and Re-Registration Process for Current Venezuela TPS Beneficiaries, Special Student Relief

The Department of Homeland Security (DHS) has taken several actions to provide relief for Venezuelans in the United States.

TPS extended. DHS has extended the designation of Venezuela for temporary protected status (TPS) for 18 months, effective September 10, 2022, through March 10, 2024. Existing TPS beneficiaries who wish to extend their status must re-register during the 60-day re-registration period that began on September 8, 2022, and runs through November 7, 2022.

DHS noted that re-registrants should re-register timely and not wait until their employment authorization documents expire because delaying re-registration could result in gaps in work authorization documentation.

Special student relief. DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Venezuela, regardless of country of birth (or individuals having no nationality who last habitually resided in Venezuela), and who are experiencing severe economic hardship as a direct result of the humanitarian crisis in Venezuela. Such students who were in lawful F-1 nonimmigrant student status on April 22, 2021, and are currently maintaining F-1 nonimmigrant student status may request work authorization, work an increased number of hours while school is in session, and reduce their courseloads while continuing to maintain status.

DHS said it will deem an F-1 nonimmigrant student who receives such employment authorization to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum courseload requirement described in the notice.

Details:

• DHS notice re Venezuelan TPS, 87 Fed. Reg. 55024 (Sept. 8, 2022). https://www.govinfo.gov/content/pkg/FR-2022-09-08/pdf/2022-19527.pdf
• DHS notice re special student relief for Venezuelans, 87 Fed. Reg. 55017 (Sept. 8, 2022). https://www.govinfo.gov/content/pkg/FR-2022-09-08/pdf/2022-19542.pdf

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24. USCIS Releases FY 2023 Employment-Based Adjustment of Status FAQs

U.S. Citizenship and Immigration Services (USCIS) released updated fiscal year (FY) 2023 frequently asked questions on employment-based (EB) adjustment of status. The introduction to the FAQs notes that the EB annual limit for FY 2023 will be higher than was typical before the pandemic but lower than in FYs 2021 and 2022. USCIS reiterated that it is “dedicated to ensuring we use as many available employment-based visas as possible in FY 2023,” which ends on September 30, 2023.

The FAQs note that the Department of State currently estimates that the FY 2023 employment-based annual limit will be approximately 200,000 due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023.

Details:

• USCIS FAQs, updated Sept. 8, 2022. https://www.uscis.gov/green-card/green-card-processes-and-procedures/fiscal-year-2023-employment-based-adjustment-of-status-faqs

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25. ETA Requests Comments on Proposed Revisions to Prevailing Wage Determination Application Forms

The Department of Labor’s Employment and Training Administration is requesting comments by October 11, 2022, on proposed revisions to the Application for Prevailing Wage Determination (Form ETA-9141) and Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey) (Form ETA-9165).

Details:

• DOL submission for Office of Management and Budget review, 87 Fed. Reg. 55042 (Sept. 8, 2022). https://www.govinfo.gov/content/pkg/FR-2022-09-08/pdf/2022-19360.pdf
• Related notice with details, 87 Fed. Reg. 35999 (June 14, 2022). https://www.govinfo.gov/content/pkg/FR-2022-06-14/pdf/2022-12804.pdf

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26. Arlington Immigration Court Relocating to Annandale; EOIR to Open Court in Sterling

The Department of Justice’s Executive Office for Immigration Review (EOIR) announced on September 9, 2022, that the Arlington Immigration Court in Virginia will end normal operations at noon on October 6, 2022, to prepare for the court’s relocation to Annandale, Virginia. Staff will remain on site to accept phone calls and filings at the Arlington Immigration Court until October 17, 2022. However, all hearings scheduled at the Arlington Immigration Court after October 5 will be rescheduled to the Annandale Immigration Court.

EOIR said it will notify parties whose cases are affected. On October 17, 2022, hearings will start at the Annandale Immigration Court, the Annandale filing window and phone lines will open, and the Arlington Immigration Court will close.

Also, EOIR is opening a new immigration court in Sterling, Virginia, on October 3, 2022. The Sterling Immigration Court will include 19 immigration judges.

Details:

• EOIR notice on Arlington court move to Annandale, Sept. 9, 2022. https://www.justice.gov/eoir/page/file/1533841/download
• EOIR notice on opening of new Sterling court, Sept. 2, 2022

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27. ABIL Global: Peru

This article discusses the Artist visa for foreigners coming to perform artistic activities in Peru.

Now that concerts and artistic events are now being held again globally following the lifting of COVID-19 pandemic-related restrictions in many areas, the Artist visa for foreigners coming to perform artistic activities in Peruvian territory should once again be considered.

The appropriate migratory status to authorize foreigners to perform artistic activities in Peru is called “Temporary-Artistic.” This status allows the foreigner to carry out paid activities linked to artistic, cultural, or other similar pursuits, by virtue of a contract executed in accordance with current Peruvian legislation. This contract must be signed before the artist enters the country and extends to the artist’s entourage.

The process must begin in MIGRACIONES’ offices in Lima before the artist and entourage enter. Once the file is approved, within 30 business days according to MIGRACIONES’ regulations (it takes longer nowadays in reality), the applicant and team must go to the Peruvian consulate abroad, where the visas are stamped in their passports.

Qualifications for this migratory status include:

• Their entry must not represent a risk to national security, internal order, or public order.
• Applicants must remain abroad until they obtain their visas granted by MIGRACIONES at the Peruvian consulate chosen abroad and indicated in their file.
• There must be a signed contract executed according to current regulations to support the visa of the artist and entourage.
• Competent authorities must verify that the foreign persons will only carry out what is established in their contract.

This visa is valid for a single entry with a maximum of 90 calendar days of stay and is not renewable.

The administrative procedure for the Temporary-Artistic Visa Application with Consular Phase is the one through which the artistic migratory status/visa will be granted. The visa, approved by MIGRACIONES, will be authorized at the corresponding Peruvian consulate at the discretion of the Peruvian state.

Required documents and requisites to be complied with to obtain this kind of visa are indicated in the MIGRACIONES’ T.U.P.A. See https://www.gob.pe/institucion/migraciones/informes-publicaciones/2770424-texto-unico-de-procedimientos-administrativos-tupa

For the approval of the visa procedure, MIGRACIONES can verify compliance with the conditions established in the related regulations applicable to migratory status. Application requests must be made for each artist/person, not as a group. Any document in a foreign language (not Spanish) must be officially translated in Peru and be apostilled or contain the corresponding legalization chain, if applicable.

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New Publications and Items of Interest

Engagement on USCIS immigrant investor program. U.S. Citizenship and Immigration Services (USCIS) announced a stakeholder engagement for the EB-5 immigrant investor program to be held Wednesday, October 19, 2022, from 2 to 3 pm ET. USCIS will share updates on the program and hold a question-and-answer session. Questions can be submitted by 4 pm Friday, September 16, 2022, via email to [email protected], with the subject line “Question: EB-5 Engagement October 19, 2022.” To register, go to https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_676, provide your email address, and select “Submit.”

USCIS public charge national stakeholder engagement. U.S. Citizenship and Immigration Services (USCIS) held a virtual public stakeholder engagement on September 29, 2022 on the recently published public charge final rule. USCIS provided updates on key provisions and was be joined by several federal agencies that manage benefits and other supplemental government services. https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-public-charge-national-stakeholder-engagement

E-Verify website redesigned. The redesigned E-Verify website is now live. The redesign includes a news widget highlighting program updates, a new social media widget sharing Tweets, content changes to “provide a better user experience for both employers and employees,” a more powerful search engine, and a new feedback feature for users to share their experiences, among other updates. https://www.e-verify.gov/e-verifygov-redesigned

U.S. citizenship fact sheet and updates. U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet and updates as part of its Citizenship Day 2022 celebration. USCIS said it “has taken a wide range of actions since then to help prospective applicants overcome barriers to citizenship and to promote naturalization, and has documented progress in reports, fact sheets, and accomplishment highlights.” https://www.uscis.gov/sites/default/files/document/fact-sheets/USCIS_Celebrates_Citizenship_Day.pdf (fact sheet); https://www.uscis.gov/promotingnaturalization (website).

Engagement on DACA final rule. U.S. Citizenship and Immigration Services (USCIS) announced a national stakeholder engagement on the Deferred Action for Childhood Arrivals (DACA) final rule, held September 22, 2022. https://www.uscis.gov/outreach/upcoming-national-engagements/deferred-action-for-childhood-arrivals-final-rule-national-stakeholder-engagement

Immigrant and Employee Rights Section free webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars for the public. https://www.justice.gov/crt/webinars

Agency Twitter accounts:

• EOIR: @DOJ_EOIR
• ICE: @ICEgov
• Study in the States: @StudyinStates
• USCIS: @USCIS

E-Verify webinar schedule. E-Verify released its calendar of webinars. https://www.e-verify.gov/calendar-field_date_and_time/month Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Foster LLP announced that Elizabeth LaRocca has joined Foster as a Partner in Foster’s expanding Dallas office. Dana Delott also has joined the Dallas office as a Senior Attorney. Both concentrate their practices in business immigration law. https://www.fosterglobal.com/blog/foster-llp-welcomes-elizabeth-larocca-and-dana-delott/

Klasko Immigration Law Partners announced:

• Ronald Klasko, William A. Stock (https://www.abil.com/abil-lawyers/william-stock/), and Elise A. Fialkowski are included in the 29th edition of The Best Lawyers in America in the area of immigration law.
• Natalia Gouz, Michele Madera, Maria Mihaylova, and Karuna Simbeck are recognized in the 2023 Edition of Best Lawyers: Ones to Watch for their outstanding professional excellence in immigration law.

Klasko Immigration Law Partners released a new podcast in their “Statutes of Liberty” series. In “Episode 30: EB-5 Litigation Victory,” Mr. Klasko and Dan Lundy talk with Anu Nair about a major litigation victory on which they were co-counsel. Klasko ILP said the litigation “is significant because USCIS had put restrictions on the EB-5 regional center program that went beyond what Congress intended when it reinstated the program in March 2022, which would have killed the program for years.” Ms. Nair asks Mr. Klasko and Dan Lundy to explain the importance and the details of the settlement and what it means for regional centers and investors moving forward.

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) authored “DACA Immigrants Could Help Solve Georgia’s Workforce Shortage,” which was published by Global Atlanta as part of its annual advertising partnership with Kuck Baxter Immigration. https://www.globalatlanta.com/daca-immigrants-could-help-solve-georgias-workforce-shortage/

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Jessica Paszko co-authored a new blog posting: “Solutions for the Family Member Who Did Not Get the Employment Based Green Card with the Principal Family Member on September 30, 2022.”

Mr. Mehta and Kaitlyn Box co-authored a new blog posting: “Asylum Seekers Are Legally in the U.S. Notwithstanding the Political Stunts of Governors Abbott and DeSantis.”

Mr. Mehta authored a new blog posting: “Will USCIS Waste Precious Employment Based Green Cards as it Announces Push to Use as Many as Possible by September 30?”

Wolfsdorf Rosenthal LLP has published a new blog posting: “Demystifying the Complicated October 2022 Visa Bulletin—What Does It Mean for EB-5 Investors?” https://wolfsdorf.com/demystifying-the-complicated-october-2022-visa-bulletin-what-does-it-mean-for-eb-5-investors/

Bernard Wolfsdorf (https://www.abil.com/abil-lawyers/bernard-wolfsdorf/) was quoted by Bloomberg in “Controversial U.S. Visa Draws Rich From China to India After Reset.” Mr. Wolfsdorf said his firm, Wolfsdorf Rosenthal LLP, has been working overtime and hiring new staff to adjust to demand from countries like India, which has eclipsed the number of petitions filed from China. Drawing such investors could help prevent a brain drain because many wealthy emigrants’ children study at top U.S. schools, he said. https://bloom.bg/3Sxd0M8

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was featured by the “Rational Middle” podcast series in “Stephen Yale-Loehr and the Stories of Immigrants.” He discussed his work in immigration law and research on refugees in the United States. https://rationalmiddle.com/podcast/episode-143-stephen-yale-loehr-and-the-stories-of-immigrants/

Mr. Yale-Loehr, faculty director of the immigration law and policy research program at Cornell Law School, announced that the Law School has hired two postdoctoral research associates, Janine Prantl and Jacob Hamburger, and two distinguished visiting scholars, Charles Kamasaki and Randel Johnson, to expand on its research capabilities in this area. In 2021, Cornell Law School received a grant of $1.6 million from the Charles Koch Foundation for a two-year project to study ways to improve immigration law and policy. Mr. Yale-Loehr said, “Cornell Law School already had a strong immigration scholar base. Adding these four new people will make us even more preeminent in this important area.” https://www.lawschool.cornell.edu/news/cornell-law-school-welcomes-new-immigration-postdocs-and-scholars/

Mr. Yale-Loehr was quoted by the Gothamist in “For Asylum Seekers, Manhattan is Only Part of a Harrowing Journey.” Regarding asylum seekers who have come from Venezuela to New York City, Mr. Yale-Loehr said, “It is too soon to tell what percentage of Venezuelans will qualify for asylum. Because of backlogs in the asylum process, it could be years before we will know.” https://gothamist.com/news/for-asylum-seekers-manhattan-is-only-part-of-a-harrowing-journey

Mr. Yale-Loehr was quoted by the Daily Caller in “Will DeSantis Be Convicted for Kidnapping Over Martha’s Vineyard Flights? Experts Say It’s Unlikely.” Mr. Yale-Loehr said he thought claiming Republican governors were guilty of human trafficking for sending migrants out of state was an “exaggeration,” adding that “illegal transportation prosecutions and convictions are very rare. They are mainly aimed at smuggling operations. Thus, I think it is unlikely that Republican governors would be prosecuted under this law. The bottom line: It is a stretch to claim that Republican governors are violating human trafficking laws or laws that bar illegal transportation of migrants.” https://dailycaller.com/2022/09/20/desantis-human-trafficking-migrants/

Mr. Yale-Loehr was interviewed by NBC LatinX about migrants being transported from the southern United States to Martha’s Vineyard, Massachusetts. The six-minute video is at https://www.lx.com/social-justice/thousands-of-migrants-are-being-transported-north-to-democrat-led-cities/58045/

Mr. Yale-Loehr was quoted by the New York Daily News in “NYC Asks Feds to Fast-Track Work Papers for Migrants and Busing Crisis.” Mr. Yale-Loehr said that U.S. Citizenship and Immigration Services was “decimated” under former President Donald Trump’s administration. “[The Biden administration is] making huge efforts to adjudicate work permit applications for asylum seekers more quickly. But it is going to take some time to improve the processing times because of the deep hole that the prior administration put them into,” he said

Mr. Yale-Loehr was quoted by Yahoo News in “After 10 Years of DACA, Dreamers Still Live in Legal Limbo.” The article discusses a new Biden administration rule designed to fortify the Deferred Action for Childhood Arrivals Program (DACA). The article quotes an op-ed Mr. Yale-Loehr co-authored about the program, published in Slate: “Because the Biden administration chiefly focused on its battle with the courts, the new rule fails to adopt any substantive measures to expand or strengthen the DACA program. Most conspicuously, the government declined to extend the date that a young immigrant must have arrived in the United States to apply for DACA. … [It] effectively set an expiration date for DACA regardless of what the courts decide.” https://news.yahoo.com/after-10-years-of-daca-dreamers-still-live-in-legal-limbo-224145492.html

Mr. Yale-Loehr was quoted by Boundless in “With DACA Program Frozen in Time, Dreamers Await Court Ruling.” The article quotes an op-ed Mr. Yale-Loehr co-authored about the program, published in Slate: “By keeping the original eligibility date, the administration effectively set an expiration date for DACA regardless of what the courts decide.” https://www.boundless.com/blog/dreamers-await-court-ruling/

Mr. Yale-Loehr was quoted by Newsweek in “Did DeSantis and Abbott Break Law with Migrant ‘Stunt’? Experts Weigh In.” Mr. Yale-Loehr said the situation was unlikely to meet the grounds for a credible human trafficking case under either state or federal laws. “Each law varies, but many laws define human trafficking as recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. As such, I think it is an exaggeration to claim that governors in Republican states are engaging in human trafficking by sending migrants to other states. In most cases that I have heard about, migrants have been happy to accept bus or plane tickets, even if they don’t know where they are going.” Mr. Yale-Loehr argued that while federal law prohibiting illegal transportation of migrants presented theoretically steadier grounds for criminal prosecutions, the chances of even that sticking were vanishingly thin. “That presents a closer case than the human trafficking argument. Still, illegal transportation prosecutions and convictions are very rare. They are mainly aimed at smuggling operations. Thus, I think it is unlikely that Republican governors would be prosecuted under this law. The bottom line is that it is an exaggeration to claim that Republican governors are violating human trafficking laws or violating laws that bar illegal transportation of migrants.” https://www.newsweek.com/did-desantis-abbott-break-law-migrant-stunt-experts-weigh-1743910

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. Certain Afghan Parolees to Receive Notices of EAD Extension – Certain Afghan parolees will receive notices indicating that the Department of Homeland Security is extending the validity of their employment authorization documents to align with the parole period shown on their Arrival/Departure Records.

2. USCIS Will No Longer Accept Combined Fee Payments for EB-5 Applications/Petitions – Beginning September 1, 2022, U.S. Citizenship and Immigration Services will no longer accept a single, combined fee payment when an applicant or petitioner files EB-5 applications or petitions with related forms.

3. ICE Plans Pilot of Photo IDs for Migrants Awaiting Deportation Proceedings – According to reports, U.S. Immigration and Customs Enforcement is developing a pilot program to issue photo ID cards to migrants awaiting deportation proceedings. The cards would not serve as a federal ID for other purposes.

4. EOIR Announces 19 New Immigration Judges – The Executive Office for Immigration Review appointed 19 new immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

5. USCIS Extends Certain COVID-19 Flexibilities – U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through October 23, 2022.

6. DHS Extends and Redesignates Syria for TPS, Suspends Certain Requirements for Syrian F-1 Students – DHS is extending the designation of Syria for temporary protected status (TPS) through March 31, 2024. DHS is also redesignating Syria for TPS. Also, effective October 1, 2022, until April 1, 2024, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Syria.

7. Some Parolees Can Now File Employment Authorization Applications Online – Certain parolees can now file Form I-765, Application for Employment Authorization, online, U.S. Citizenship and Immigration Services announced.

8. 100,000 Ukrainians Admitted to United States in July – According to reports, as part of what’s being called the largest refugee exodus since World War II, more than 100,000 Ukrainians who fled the Russian invasion of their country have been admitted into the United States, mostly in temporary statuses.

9. New STEM Resources Released – Several entities have released new resources on research and options for noncitizens in the fields of science, technology, engineering, and mathematics in the United States.

10. USCIS Reminds Employers That Only Unexpired I-9 List B Documents Are Accepted – If a current employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must have updated their I-9 forms by July 31, 2022.

11. Guidance Updated on Evidence to Support STEM-Related O-1 Extraordinary Ability Nonimmigrant Petitions – Being named on a competitive government grant for STEM research can be a positive factor in demonstrating that a beneficiary is at the top of their field, USCIS said.

12. Reports: Record-High Delays in Visa Interviews and Backlogs Lead to Lawsuits – Tourists and business visitors wishing to travel to the United States are waiting more than six months to schedule visa interviews or process renewals at most consulates, and the wait for some visa interviews is more than a year. Wait times vary significantly, depending on the consulate.

13. USCIS Updates Guidance for Afghans and Iraqis Seeking Special Immigrant Classification – Among other things, the guidance clarifies statutory requirements that a noncitizen seeking an Afghan or Iraqi SIV must establish to show that they provided faithful and valuable service to the U.S. government.

14. USCIS To Implement Second Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions – Similar to the first phase of the expansion, this phase only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver

15. House Updates: STEM Measure Fails, ‘Documented Dreamers’ Advances – Several immigration-related proposals were among more than a thousand amendments proposed for the House of Representatives’ Rules Committee to consider as additions to the annual defense bill.

16. DHS Extends TPS Designation for Venezuela – The Department of Homeland Security has extended Venezuela’s temporary protected status (TPS) designation for 18 months, effective September 10, 2022, through March 10, 2024. Approximately 343,000 individuals are estimated to be eligible for TPS under the existing designation of Venezuela.

17. New EB-5 Immigrant Investor Forms Released – U.S. Citizenship and Immigration Services has revised Form I-526, Immigrant Petition by Alien Entrepreneur, to accommodate the EB-5 Reform and Integrity Act of 2022. The form is split into two versions: I-526, Immigrant Petition by Standalone Investor, and I-526E, Immigrant Petition by Regional Center Investor. Those who file Form I-526E on or after October 1, 2022, will need to pay an additional $1,000.

18. Senators Send Letter to Labor Secretary on Delays in Prevailing Wage Determinations for Foreign Workers – Sens. Amy Klobuchar and Susan Collins sent a letter to Secretary of Labor Martin J. Walsh asking about steps the Department of Labor is taking to address delays in the processing of prevailing wage determinations for immigrant and nonimmigrant visas.

19. DHS Extends Timeframe for Ukrainian Parolees To Comply With Medical Screening and Attestation – Beneficiaries paroled into the United States under Uniting for Ukraine must complete their medical attestations within 90 days of arrival in the United States, extended from within 14 days of arrival.

20. SSA Resumes Normal E-Verify Timeframes – Employees whose E Verify cases are referred to the Social Security Administration (SSA) on or after that date now have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch.

21. Labor Dept. Releases FAQ on Process for Requesting Support for Immigration-Related Prosecutorial Discretion for Workers Involved in Labor Disputes – The Department of Labor released frequently asked questions on the process for requesting DOL support for requests to the Department of Homeland Security for immigration-related prosecutorial discretion during labor disputes.

22. USCIS Rescinds Decision on Agency Interpretation of Authorized Travel by TPS Beneficiaries – Among other things, USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries but will instead provide a new TPS travel authorization document.

23. USCIS Releases New I-9 Guidance for Employers of E and L Nonimmigrants – USCIS has published new guidance on Form I-9, Employment Authorization Verification, related to employees with E and L nonimmigrant status in its Handbook for Employers (M-274, Section 6.9, Other Temporary Workers).

24. DHS Issues Final Rule Changing NAFTA to USMCA – The Department of Homeland Security issued a final rule relating to the temporary entry of Canadian and Mexican citizen business persons into the United States. The final rule replaces references to the North American Free Trade Agreement with references to the Agreement Between the United States of America, the United Mexican States, and Canada.

25. ABIL Global: Schengen Area – What’s next in the Schengen Area? This article provides highlights on the new automated Entry/Exit System and the European Travel Information and Authorization System.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – August 2022

1. Certain Afghan Parolees to Receive Notices of EAD Extension

U.S. Citizenship and Immigration Services (USCIS) announced that certain Afghan parolees will receive a Form I-797C, Notice of Action, indicating that the Department of Homeland Security (DHS) is extending the validity of their Form I-766, Employment Authorization Document (EAD), to align with the parole period shown on their Form I‑94, Arrival/Departure Record.

USCIS explained that during Operation Allies Welcome, many Afghans who arrived as part of the evacuation efforts were paroled into the United States. Many applied for and received EADs. Certain EADs with a validity period of less than two years are now being automatically extended to align with the parole period shown on the beneficiary’s I-94. Affected beneficiaries will receive an I‑797C indicating that DHS is extending that individual’s EAD to align with the parole period shown on their Form I‑94.

Details:

• “USCIS Issuing Updated I-797C for Certain Operation Allies Welcome Parolees,” USCIS, Aug. 2, 2022, https://www.uscis.gov/i-9-central/form-i-9-related-news/uscis-issuing-updated-i-797c-for-certain-operation-allies-welcome-parolees-0

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2. USCIS Will No Longer Accept Combined Fee Payments for EB-5 Applications/Petitions

U.S. Citizenship and Immigration Services (USCIS) announced that beginning September 1, 2022, it will no longer accept a single, combined fee payment when an applicant or petitioner files EB-5 immigrant investor applications or petitions with related forms. If a petitioner or applicant submits a single, combined fee payment for the forms listed below, USCIS will reject the forms for improper fee payment and return the fee.

Specifically, USCIS will no longer accept combined payments when an immigrant investor files Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, together with Form I-485, Application to Register Permanent Residence or Adjust Status; Form I-131, Application for Travel Document; or Form I-765, Application for Employment Authorization.

Details:

• EB-5 Immigrant Investor Program alert, USCIS, Aug. 2, 2022, https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program

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3. ICE Plans Pilot of Photo IDs for Migrants Awaiting Deportation Proceedings

According to reports, U.S. Immigration and Customs Enforcement (ICE) is developing a pilot program to issue photo ID cards to migrants awaiting deportation proceedings. The cards would not serve as a federal ID for other purposes.

The program is pursuant to the Biden administration’s request for $10 million for the “ICE Secure Docket Card” program in next fiscal year’s budget. An ICE spokesperson said, “Moving to a secure card will save the agency millions, free up resources, and ensure information is quickly accessible to DHS officials while reducing the agency’s [Freedom of Information Act] backlog.”

Some House Republicans are “probing” the “reckless” plan, citing worries that the ID cards would be used to “improperly access benefits such as housing, healthcare, and transportation,” among other concerns. In a letter to ICE Acting Director Tae Johnson, the Republican lawmakers have requested a briefing and all documents related to the ICE Secure Docket Card program.

Details:

• U.S. to Issue ID to Migrants Awaiting Deportation Proceedings,” Durango Herald, Aug. 4, 2022,
• “Comer, Grothman Probe ICE’s Identification Cards Pilot Program for Illegal Immigrants,” July 29, 2022, https://republicans-oversight.house.gov/release/comer-grothman-probe-ices-identification-cards-pilot-program-for-illegal-immigrants/
• Letter from House Republicans to Tae Johnson, ICE Acting Director, July 29, 2022, https://republicans-oversight.house.gov/wp-content/uploads/2022/07/ICE-ID-Cards-Letter-07292022.pdf

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4. EOIR Announces 19 New Immigration Judges

The Department of Justice’s Executive Office for Immigration Review (EOIR) appointed 19 new immigration judges (IJs) to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

EOIR said it continues to work to expand its IJ corps and “welcomes qualified candidates from all backgrounds to join the agency.”

Details:

• EOIR notice, Aug. 5, 2022 (includes biographies of each of the 19 new IJs), https://www.justice.gov/eoir/page/file/1524336/download

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5. USCIS Extends Certain COVID-19 Flexibilities

U.S. Citizenship and Immigration Services (USCIS) is extending certain COVID-19-related flexibilities through October 23, 2022. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and October 23, 2022, inclusive:

• Requests for Evidence
• Continuations to Request Evidence (N-14)
• Notices of Intent to Deny, Revoke, Rescind, Terminate (regional center), or Withdraw Temporary Protected Status
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

• The form was filed up to 90 calendar days from the issuance of a decision by USCIS; and
• USCIS made that decision between November 1, 2021, and October 23, 2022, inclusive.

USCIS also said it has been evaluating which flexibilities should be extended permanently. As a result of this evaluation, the reproduced signature flexibility announced in March 2020 became permanent policy on July 25, 2022. Under that policy, a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original “wet” signature, USCIS will accept electronically reproduced original signatures. Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature, USCIS said. USCIS may request the original documents at any time, and failure to do so “could negatively impact the adjudication of the immigration benefit.”

Details:

• “USCIS Extends COVID-19-Related Flexibilities,” July 25, 2022,
• “USCIS Announces Flexibility in Submitting Required Signatures During COVID-19 National Emergency,” March 20, 2020, https://www.uscis.gov/news/alerts/uscis-announces-flexibility-in-submitting-required-signatures-during-covid-19-national-emergency

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6. DHS Extends and Redesignates Syria for TPS, Suspends Certain Requirements for Syrian F-1 Students

The Department of Homeland Security (DHS) announced several measures to provide relief to Syrians in the United States, summarized below.

Temporary Protected Status Extended, Redesignated

DHS is extending the designation of Syria for temporary protected status (TPS) for 18 months, effective October 1, 2022, through March 31, 2024. DHS is also redesignating Syria for TPS.

Extension. The extension allows existing TPS beneficiaries to retain TPS through March 31, 2024, as long as they otherwise continue to meet the eligibility requirements. Existing TPS beneficiaries who wish to extend their status through March 31, 2024, must re-register during the 60-day re-registration period, which begins on the date of publication of the notice in the Federal Register. As of press time, the notice was expected to be published on August 1, 2022.

Redesignation. The redesignation of Syria allows additional Syrian nationals (and individuals having no nationality who last habitually resided in Syria) who have been continuously residing in the United States since July 28, 2022, to apply for TPS for the first time during the initial registration period. In addition to demonstrating continuous residence in the United States since July 28, 2022, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since October 1, 2022.

DHS said the extension of TPS for Syria allows approximately 6,448 current beneficiaries to retain TPS through March 31, 2024, if they meet TPS eligibility requirements. Approximately 960 additional individuals may be eligible for TPS under the redesignation, DHS noted.

Certain Requirements Suspended for Syrian F-1 Students

Effective October 1, 2022, until April 1, 2024, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Syria, regardless of country of birth (or individuals having no nationality who last resided in Syria), and who are experiencing severe economic hardship as a direct result of the civil war in Syria. Eligible Syrian students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 nonimmigrant student status. DHS said it will deem an F–1 nonimmigrant student who receives employment authorization by means of the notice “to be engaged in a ‘full course of study’ for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement” as described in the notice.

Details:

• DHS TPS notice (advance copy), https://www.govinfo.gov/content/pkg/FR-2022-08-01/pdf/2022-16508.pdf
• DHS TPS announcement,
• DHS F-1 student notice (advance copy), https://www.govinfo.gov/content/pkg/FR-2022-08-01/pdf/2022-16469.pdf

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7. Some Parolees Can Now File Employment Authorization Applications Online

Certain parolees can now file Form I-765, Application for Employment Authorization, online, U.S. Citizenship and Immigration Services (USCIS) announced on July 28, 2022. Effective immediately, eligible individuals paroled into the United States for urgent humanitarian or significant public benefit purposes under INA § 212(d)(5) who are eligible to seek work authorization under category (c)(11) can file Form I-765 online, with limited exceptions.

Those seeking a waiver of the filing fee or who are eligible for a fee exemption must still file the I-765 by mail.

Details:

• USCIS alert, July 28, 2022, https://www.uscis.gov/newsroom/alerts/parolees-can-now-file-form-i-765-online

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8. 100,000 Ukrainians Admitted to United States in July

According to reports, as part of what’s being called the largest refugee exodus since World War II, more than 100,000 Ukrainians who fled the Russian invasion of their country have been admitted into the United States, mostly in temporary statuses.

Included are approximately 47,000 on temporary visas, including tourist visas; 30,000 under the “Uniting for Ukraine” program, which includes humanitarian parole; and 22,000 paroled in at the U.S.-Mexico border. Five hundred entered the United States via the refugee system.

Details:

• U.S. Admits 100,000 Ukrainians in 5 Months, Fulfilling Biden Pledge,” CBS News, July 29, 2022, https://www.cbsnews.com/news/us-admits-100000-ukrainians-in-5-months-fulfilling-biden-pledge/

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9. New STEM Resources Released

Several entities have released new resources on research and options for noncitizens in the fields of science, technology, engineering, and mathematics (STEM) in the United States:

• S. Citizenship and Immigration Services has published resources to provide an overview of some of the temporary and permanent pathways for noncitizens to work in the United States in STEM fields. The materials also highlight some of the most important considerations for STEM professionals who want to work in the United States. New pages include “Options for Noncitizen STEM Professionals to Work in the United States,” “Nonimmigrant Pathways for STEM Employment in the United States,” and “Immigrant Pathways for STEM Employment in the United States.” https://www.uscis.gov/newsroom/alerts/new-stem-resources-available-on-uscis-website
• The American Immigration Council rolled out a new website with guides and frequently asked questions on the five international STEM talent policies announced in January 2022 by the Biden administration to enhance the ability of the United States to attract and retain international STEM talent. The website features five guides and FAQs (https://info.americanimmigrationcouncil.org/stem-faqs/faqs.html) and new research and links to other work (https://www.americanimmigrationcouncil.org/research/foreign-born-stem-workers-united-states)
• In a new policy brief, the National Foundation for American Policy has documented the role played by immigrants as founders and key personnel in many of the United States’ most innovative companies. The research shows the importance of immigrants in cutting-edge companies and the U.S. economy at a time when U.S. immigration policies have pushed talent to other countries. https://nfap.com/research/new-nfap-policy-brief-immigrant-entrepreneurs-and-u-s-billion-dollar-companies/

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10. USCIS Reminds Employers That Only Unexpired I-9 List B Documents Are Accepted

U.S. Citizenship and Immigration Services (USCIS) reminded employers that the Department of Homeland Security (DHS) ended the temporary flexibility related to accepting expired List B documents for Form I-9 employment eligibility verification purposes. DHS explained that it adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic, but document-issuing authorities have reopened and/or provided alternatives to in-person renewals. If a current employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must have updated their I-9 forms by July 31, 2022.

Details:

• USCIS announcement, July 6, 2022, https://www.uscis.gov/i-9-central/form-i-9-related-news/reminder-dhs-ended-covid-19-temporary-policy-for-expired-list-b-identity-documents

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11. Guidance Updated on Evidence to Support STEM-Related O-1 Extraordinary Ability Nonimmigrant Petitions

U.S. Citizenship and Immigration Services (USCIS) updated its guidance on evidence that can be used to support a petition for an O-1A nonimmigrant of extraordinary ability with a focus on science, technology, engineering, and mathematics (STEM) fields.

USCIS clarified that “being named on a competitive government grant for STEM research can be a positive factor toward demonstrating that a beneficiary is at the top of their field. This evidence is added to the listed examples of evidence that may be submitted to show that an applicant has extraordinary ability in the STEM fields.”

Details:

• USCIS alert, July 22, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-for-o-1-petitions-with-a-focus-on-stem-fields
• O-1 Beneficiaries, Chapter 4, USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4

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12. Reports: Record-High Delays in Visa Interviews and Backlogs Lead to Lawsuits

According to reports, due to visa interview wait times and backlogs reaching new highs, thousands of lawsuits have been filed. Tourists and business visitors wishing to travel to the United States are waiting more than six months to schedule visa interviews or process renewals at most consulates, and the wait for some visa interviews is more than a year. Wait times vary significantly, depending on the consulate.

U.S. Citizenship and Immigration Services (USCIS) acknowledged the increase in delays and backlogs in recent years and blamed the problems on the COVID-19 pandemic and resource constraints, including a drop in paperwork submissions with fees and a staff hiring freeze under the previous administration. USCIS released a public statement in March 2022 outlining steps the agency is taking to address the issues, including targeting processing backlogs, expanding premium processing, and improving access to employment authorization documents. A USCIS spokesperson said the agency expects to resolve related processing issues and reach a 95 percent hiring target by the end of 2022.

Details:

• “Visa Interview Wait Times Reach New Highs: 247 Days for Visitors/Business Travelers,” CATO at Liberty, July 19, 2022, https://www.cato.org/blog/visa-interview-wait-times-reach-new-highs-247-days-visitors/business-travelers
• “Government Inaction on Immigration Paperwork Leads to Record High Lawsuits,” TRAC Report, July 12, 2022, https://trac.syr.edu/tracreports/civil/689/
• “Thousands of Lawsuits Have Been Filed Over Wait Times, Backlogs at U.S. Citizenship and Immigration Services,” Reason, July 18, 2022, https://reason.com/2022/07/18/thousands-of-lawsuits-have-been-filed-over-wait-times-backlogs-at-u-s-citizenship-and-immigration-services/
• “USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders,” USCIS, March 29, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work

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13. USCIS Updates Guidance for Afghans and Iraqis Seeking Special Immigrant Classification

USCIS updated guidance regarding Afghan and Iraqi nationals seeking special immigrant classification. Effective immediately, the new guidance:

• Explains that noncitizens seeking an Afghan Special Immigrant Visa (SIV) on or after July 20, 2022, must file Form DS-157, Petition for Special Immigrant Classification for Afghan SIV Applicants, with the Department of State when they are applying for Chief of Mission approval. In some circumstances, noncitizens must still file a petition with USCIS to pursue an Afghan SIV;
• Updates eligibility criteria to reflect that the employment requirement for an Afghan SIV is now one year and clarifies what type of employment with the International Security Assistance Force qualifies;
• Updates eligibility criteria for surviving spouses and children of deceased principal noncitizens to expand the scope of who may apply for Afghan and Iraqi SIVs;
• In cases where a visa is not immediately available, removes the date limitation to convert an approved petition for an Afghan or Iraqi translator or interpreter to an approved petition for an Iraqi or Afghan employed by or on behalf of the U.S. government; and
• Clarifies statutory requirements that a noncitizen seeking an Afghan or Iraqi SIV must establish that they provided faithful and valuable service to the U.S. government by submitting a positive recommendation or evaluation from their supervisor.

Details:

• USCIS alert, July 20, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-for-afghans-and-iraqis-seeking-special-immigrant-classification

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14. USCIS To Implement Second Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions

On July 15, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it is implementing the second phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Similar to the first phase of the expansion, this phase only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.

Beginning August 1, 2022, USCIS will accept Form I-907 requests for:

• E13 multinational executive and manager petitions received on or before July 1, 2021; and
• E21 NIW petitions received on or before August 1, 2021.

USCIS will reject premium processing requests for these Form I-140 classifications if the receipt date is after the dates listed above. USCIS has 45 days to take an adjudicative action on cases that request premium processing for these newly included Form I-140 classifications. The agency said it will not accept new (initial) Forms I-140 with a premium processing request now.

On May 24, 2022, USCIS published a new version of Form I-907, dated 05/31/22. As of July 1, the agency is no longer accepting the older 09/30/20 edition of Form I-907.

Details:

• USCIS announcement, July 15, 2022, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-second-phase-of-premium-processing-for-certain-previously-filed-eb-1-and-eb-2

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15. House Updates: STEM Measure Fails, ‘Documented Dreamers’ Advances

Several immigration-related proposals were among more than a thousand amendments proposed for the House of Representatives’ Rules Committee to consider as additions to the annual National Defense Authorization Act (H.R. 7900):

• A measure to streamline the path to a green card for immigrants with doctorates in science, technology, engineering, and mathematics (STEM) fields failed as the Rules Committee deemed it “out of order” for consideration as an amendment to the defense bill. According to reports, other efforts to find a way to advance it also stalled in negotiations.
• However, a proposal to admit experts in science and technology for national security-related reasons will receive a vote on the House floor. The proposal appears to be limited to 10 experts per year to be selected by the Department of Defense.
• Also advancing to the House floor is a measure to ensure that “documented Dreamers,” who are dependents of foreign workers or applicants for permanent residence (green cards), won’t age out of legal status when they turn 21.
• Another amendment that advanced would exempt Afghan students from having to show nonimmigrant intent when they apply for student visas to the United States.

Details:

• “Immigration Measure for STEM Workers Adrift After Defense Flop,” Bloomberg Law, July 13, 2022,

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16. DHS Extends TPS Designation for Venezuela

The Department of Homeland Security has extended Venezuela’s temporary protected status (TPS) designation for 18 months, effective September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension. Venezuelans who arrived in the United States after March 8, 2021, are not eligible. Approximately 343,000 individuals are estimated to be eligible for TPS under the existing designation of Venezuela.

A forthcoming Federal Register notice will provide instructions for re-registering for TPS and applying to renew an employment authorization document (EAD). Venezuelans who are currently eligible for TPS under the existing designation but have not yet applied with U.S. Citizenship and Immigration Services (USCIS) should file their applications before the September 9, 2022, application deadline, including those Venezuelans who are covered under the January 2021 grant of Deferred Enforced Departure (DED), USCIS said. Venezuela’s DED is set to expire July 20, 2022.

Details:

• USCIS news release, July 11, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-announces-extension-of-temporary-protected-status-for-venezuela

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17. New EB-5 Immigrant Investor Forms Released

U.S. Citizenship and Immigration Services (USCIS) has revised Form I-526, Immigrant Petition by Alien Entrepreneur, to accommodate the EB-5 Reform and Integrity Act of 2022, which made significant changes to the filing and eligibility requirements for investors under the EB-5 program. The form is now split into two versions:

• Form I-526, Immigrant Petition by Standalone Investor, is to be used by “standalone immigrant investors who are not seeking to pool their investment with additional investors seeking EB-5 classification.” It closely resembles the prior edition of Form I-526.
• Form I-526E, Immigrant Petition by Regional Center Investor, is to be used by “immigrant investors who are seeking to pool their investment with one or more additional investors seeking EB-5 classification under the new regional center program.”

Form I-526E “reflect[s] elements of the new regional center program, including the ability to incorporate evidence by reference from a regional center’s Form I-956F,” USCIS said.

As of July 12, 2022, Forms I-526 and I-526E must be submitted in compliance with new program requirements, USCIS said. The filing fee is $3,675 for each form. Those who file Form I-526E on or after October 1, 2022, will need to pay an additional $1,000, required by the EB-5 Reform and Integrity Act of 2022. This additional amount does not apply to an amendment request. A separate biometric services fee of $85 is also required for each petitioner submitting an initial I-526E petition. The biometric services fee is not required for petitions filing the I-526 to amend a previously filed petition.

Details:

• USCIS announcement, July 12, 2022, https://www.uscis.gov/newsroom/alerts/uscis-releases-new-forms-for-immigrant-investor-program-0
• Form I-526, https://www.uscis.gov/i-526
• Form I-526E, https://www.uscis.gov/i-526e

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18. Senators Send Letter to Labor Secretary on Delays in Prevailing Wage Determinations for Foreign Workers

U.S. Senators Amy Klobuchar and Susan Collins sent a letter on July 7, 2022, to Secretary of Labor Martin J. Walsh asking about steps the Department of Labor (DOL) is taking to address delays in the processing of prevailing wage determinations for immigrant and nonimmigrant visas.

They noted that the H-1B, H-2B, and employment-based visa programs all require DOL to conduct prevailing wage determinations to ensure that hiring foreign workers will not negatively affect the wages and working conditions of U.S. employees in similar positions. As of May, the senators pointed out, some employers who filed applications for prevailing wage determinations in November were still waiting for their applications to be processed. “These delays make it hard for businesses to have the confidence that they will have the workers they need,” the senators said. “This is especially true for seasonal businesses that have a small window of time where they can make all the revenue they need for the entire year. Delays of even a few days can have devastating impacts on their ability to stay open.”

The senators asked for answers to their questions by July 29, 2022.

Details:

• Letter from senators to Secretary Walsh, July 7, 2022,

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19. DHS Extends Timeframe for Ukrainian Parolees To Comply With Medical Screening and Attestation

The Department of Homeland Security (DHS) has extended the timeframe beneficiaries paroled into the United States under the “Uniting for Ukraine” program have to attest to their compliance with medical screening for tuberculosis and additional vaccinations, if required. Beneficiaries paroled into the United States under Uniting for Ukraine must complete their medical attestations within 90 days of arrival in the United States. Previously, such beneficiaries had to complete the medical screening and attestation within 14 days of arrival.

The attestation is a condition of parole and must be completed in the beneficiary’s USCIS online account. Beneficiaries are responsible for arranging their vaccinations and medical screening for tuberculosis, including an Interferon-Gamma Release Assay (IGRA) blood test, DHS said.

Details:

• DHS news release, July 13, 2022, https://www.uscis.gov/newsroom/alerts/time-frame-extended-for-uniting-for-ukraine-parolees-to-comply-with-medical-screening-and

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20. SSA Resumes Normal E-Verify Timeframes

E-Verify announced that as of July 15, 2022, employees whose E‑Verify cases are referred to the Social Security Administration (SSA) have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch.

At the onset of the COVID-19 pandemic in March 2020, E‑Verify extended the timeframe for an employee to take action to resolve a Tentative Nonconfirmation (mismatch). For E‑Verify cases referred on or after July 15, 2022, E‑Verify is no longer providing extended timeframes for employees to visit SSA to resolve these mismatches. However, E‑Verify cases referred between March 2, 2020, to July 14, 2022, with an SSA mismatch still had an extended timeframe to be resolved, E-Verify said.

Details:

• E-Verify announcement, July 5, 2022,

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21. Labor Dept. Releases FAQ on Process for Requesting Support for Immigration-Related Prosecutorial Discretion for Workers Involved in Labor Disputes

On July 6, 2022, the Department of Labor (DOL) released frequently asked questions (FAQ) on the process for requesting DOL support for requests to the Department of Homeland Security (DHS) for immigration-related prosecutorial discretion during labor disputes.

The FAQ states that DOL considers such requests on a case-by-case basis. DOL remains open to requests from workers to express DOL support for their requests to DHS seeking immigration-related prosecutorial discretion. The FAQ notes:

[W]orkers must feel free to participate in the Department’s investigations and proceedings without fear of retaliation or immigration-related consequences. DOL’s mission and effective enforcement depends on the cooperation of workers. However, vulnerable workers who lack work authorization or sufficiently ‘portable’ immigration status are often reluctant to report violations, engage with government enforcement agencies, or otherwise exercise their rights. For example, undocumented workers who experience labor law violations may fear that cooperating with an investigation will result in the disclosure of their immigration status or that of family members, or that it will result in immigration-based retaliation from their employers and adverse immigration consequences for themselves or their family. As a result, both workers and the Department face barriers to equitable and effective enforcement of workplace rights and protections, and the many employers that adhere to labor and employment laws face unfair competition.

DOL has long supported prosecutorial discretion on a case-by-case basis, to further enforcement of laws within DOL’s jurisdiction.

Details:

• FAQ, Dept. of Labor, July 6, 2022,

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22. USCIS Rescinds Decision on Agency Interpretation of Authorized Travel by TPS Beneficiaries

On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it has rescinded its designation of the Administrative Appeals Office (AAO) decision in Matter of Z-R-Z-C-2 as an Adopted Decision and updated its interpretation of the effects of authorized travel by temporary protected status (TPS) beneficiaries. The memorandum notes, among other things:

• USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries, but will instead provide a new TPS travel authorization document. This document will serve as evidence that the bearer may be inspected and admitted into TPS pursuant to the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA) if all other requirements are met.
• TPS beneficiaries whom DHS has inspected and admitted into TPS under MTINA, subsequent to that inspection and admission, will have been “inspected and admitted” and are “present in the United States pursuant to a lawful admission,” including for purposes of adjustment of status under INA § 245 for a green card. This is true even if the TPS beneficiary was present without admission or parole when initially granted TPS.
• In adjudicating an application for adjustment of status, or any other benefit request where relevant, USCIS will consider whether to apply this guidance to travel undertaken by the applicant before the issuance of this memorandum. This consideration will include a case-by-case review of any reliance on the prior policy, applicable law, and any other relevant factors. Additionally, to be eligible for consideration under this guidance, past travel must meet each of the following requirements:
• The noncitizen obtained prior authorization to travel abroad temporarily on the basis of being a TPS beneficiary;
• The noncitizen’s TPS was not withdrawn or the designation for their foreign state (or part of a foreign state) was not terminated or did not expire during their travel;
• The noncitizen returned to the United States in accordance with the authorization to travel; and
• Upon return, the noncitizen was inspected by DHS or the former Immigration and Naturalization Service (INS) at a designated port of entry and paroled or otherwise permitted to pass into the territorial boundaries of the United States in accordance with the TPS-based travel authorization.

Details:

• USCIS Policy Memorandum, PM-602-0188, July 1, 2022, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0188-RescissionofMatterofZ-R-Z-C-.pdf

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23. USCIS Releases New I-9 Guidance for Employers of E and L Nonimmigrants

U.S. Citizenship and Immigration Services has published new guidance on Form I-9, Employment Authorization Verification, related to employees with E and L nonimmigrant status in its Handbook for Employers (M-274, Section 6.9, Other Temporary Workers).

Details:

• “M-274 Update: New Section Added for Other Temporary Workers,” July 5, 2022, https://www.uscis.gov/i-9-central/form-i-9-related-news/m-274-update-new-section-added-for-other-temporary-workers-0
• Handbook for Employers, Section 6.9, Other Temporary Workers, https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/60-evidence-of-status-for-certain-categories/69-other-temporary-workers

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24. DHS Issues Final Rule Changing NAFTA to USMCA

The Department of Homeland Security (DHS) issued a final rule relating to the temporary entry of Canadian and Mexican citizen business persons into the United States. The final rule replaces references to the North American Free Trade Agreement (NAFTA) with references to the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA).

The USMCA superseded NAFTA and its related provisions on July 1, 2020. Chapter 16 of the USMCA “generally maintains the same treatment as provided under NAFTA with respect to the temporary entry of Canadian and Mexican citizen business persons,” DHS said. The final rule “makes other minor, non-substantive conforming amendments and stylistic changes and corrects typographical errors.”

Details:

• U.S. Customs and Border Protection, Final Rule, 87 Fed. Reg. 41027 (July 11, 2022), https://www.govinfo.gov/content/pkg/FR-2022-07-11/pdf/2022-14728.pdf

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25. ABIL Global: Schengen Area

What’s next in the Schengen Area? This article provides highlights on the new automated Entry/Exit System and the European Travel Information and Authorization System.

The new automated Entry/Exit System (EES)

The Entry/Exit System (EES) is an automated IT system for registering travelers from third countries, both short-stay visa holders and visa-exempt travelers, each time they cross an EU external border. The EES will replace the current system of manual stamping of passports, which does not allow for the systematic detection of overstayers (travelers who have exceeded the maximum duration of their authorized stay).

It is expected to be operational in 2022 (starting date to be confirmed). The system will register the person’s name, type of travel document, biometric data (fingerprints and captured facial images), and date and place of entry and exit.

The EES is intended to contribute to preventing irregular migration and to identifying overstayers more efficiently (and automatically) as well as cases of document and identity fraud.

European Travel Information and Authorization System

Starting in May 2023, non-European Union (EU) nationals who do not need a visa to travel to the Schengen Area will need to apply for travel authorization through the European Travel Information and Authorization System (ETIAS) before their trip. The system aims to carry out pre-travel screening for security and migration risks of visa-exempt visitors and will be a mandatory pre-condition for entry to the Schengen States.

Applicants will file an online application form, and the system will issue travel authorization in most cases within minutes or, where further checks on the traveler are needed, within 30 days. Applicants will need to submit information to answer questions about the Member State of their first intended stay, the purpose of their trip, background relating to previous criminal records, presence in conflict zones, and orders to leave the territory of a Member State or third countries. The applicant must report any criminal offense listed over the previous 10 years and, in the case of terrorist offenses, over the previous 20 years, including when and in which country.

Details:

• How to Count Your Schengen 90 Days, Marco Mazzeschi, https://medium.com/studiomazzeschi/how-to-count-your-schengen-90-days-ee96f5d25326
• “Can You Enter the Schengen Area If You Have Past Criminal Convictions?,” Marco Mazzeschi, https://mm-63015.medium.com/can-you-enter-the-schengen-area-if-you-have-past-criminal-convictions-e2280bcc2ccb

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New Publications and Items of Interest

FAQs on ICE prosecutorial discretion. U.S. Immigration and Customs Enforcement (ICE) released updated frequently asked questions (FAQs) on prosecutorial discretion and the Department of Homeland Security’s civil immigration enforcement priorities in light of a court’s vacating Secretary Alejandro Mayorkas’ related September 30, 2021, memorandum. The FAQs note, among other things, that although ICE’s Office of the Principal Legal Advisor (OPLA) attorneys are no longer applying the Mayorkas memo, they may still “exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.” https://www.ice.gov/about-ice/opla/prosecutorial-discretion

Webinars on E-Verify and Form I-9. E-Verify is presenting free webinars on E-Verify and the Form I-9 employment eligibility verification process. The webinars are eligible for professional development credits through the Society of Human Resource Management and the Human Resource Certification Institute, except for “E-Verify in 30” and “myE-Verify.” Customized sessions are also available; email [email protected] to arrange the topic, date, and time. https://www.e-verify.gov/about-e-verify/e-verify-webinars

Beware of ICE imposters. U.S. Customs and Immigration Enforcement (ICE) released a safety alert warning people to beware of ICE imposters after reports of people representing themselves as ICE personnel in person, by telephone, or online for fraudulent gain and attempting to elicit some form of payment or compensation for immigration benefits or other immigration services. https://www.ice.gov/sites/default/files/documents/Document/2019/bewareICEimposters.pdf

HHS releases lists of designated primary medical care, mental health, and dental health professional shortage areas. The Department of Health and Human Services released the complete lists of all geographic areas, population groups, and facilities designated as primary medical care, dental health, and mental health professional shortage areas (HPSAs) in a designated status as of April 29, 2022. The lists are available from HRSA at https://data.hrsa.gov/tools/shortage-area.

FAQ on VWP and ESTA. U.S. Customs and Border Protection has released frequently asked questions about the Visa Waiver Program and the Electronic System for Travel Authorization. https://www.cbp.gov/travel/international-visitors/frequently-asked-questions-about-visa-waiver-program-vwp-and-electronic-system-travel

New citizenship ambassador initiative. U.S. Citizenship and Immigration Services (USCIS) announced the launch of the first-ever citizenship ambassador initiative. Through this new initiative, USCIS will partner with community leaders who will promote citizenship through their own immigrant experiences. The initiative “is designed to make a personal and local connection to the more than 9.1 million lawful permanent residents who may be eligible to apply for naturalization and who otherwise may not have access to or knowledge of the naturalization process,” USCIS said. https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-citizenship-ambassador-initiative

List of randomized H-2B applications published. The Office of Foreign Labor Certification (OFLC) has published the Assignment Group(s) for 1,360 H-2B applications covering 29,856 worker positions with a work start date of October 1, 2022 (fiscal year 2023). Since the number of the H-2B applications received during the three-day filing window (July 3–5, 2022) collectively requested fewer worker positions for certification than the number of visas available under the semi-annual visa allotment for the first half of fiscal year 2022, all H-2B applications filed within that time period that requested workers starting October 1, 2022, were randomly given a unique number in accordance with OFLC’s randomization process and placed into the same group for assignment to analysts for review and processing. https://www.dol.gov/agencies/eta/foreign-labor (scroll to July 12, 2022)

Immigrant and Employee Rights Section free webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars for the public. https://www.justice.gov/crt/webinars

Agency Twitter accounts:

• EOIR: @DOJ_EOIR
• ICE: @ICEgov
• Study in the States: @StudyinStates
• USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has released several new episodes in the Statutes of Liberty podcast series. In “Episode 29: EB-5 Regional Centers,” Klasko EB-5 attorneys discuss the latest updates to the EB-5 regional center program and what that means for investors, developers, and brokers. They also address what role they played in recent litigation and give advice on next steps for EB-5 clients. Attorneys Ron Klasko, Dan Lundy, and Allison Li address questions on what a federal district court judge’s preliminary injunction means and more, including:

• Is the regional center program fully operational now?
• Can regional centers file project approval applications now?
• When can investors file I-526s?
• Are there any risks for investors who file I-526 petitions?
• What if an existing regional center wants to change or extend its geographic territory?

In “Episode 28: Introduction to the EB-1 Visa,” , Klasko’s EB-1 attorney team discusses the fundamentals of EB-1, gives an overview on how to prepare for a successful EB-1 petition, and covers ways to increase your chances of approval. Anu Nair, Allie Dempsey, and Nigel James answer these need-to-know questions before starting your EB-1 application:

• Do you need a sponsor?
• What are the benefits?
• What criteria are needed?
• What are some alternative options?

The podcast episodes are available at

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) released several Foster LLP announcements:

• Chairman Charles Foster discussed U.S. immigration policy and border protection on a recent episode of KPRC Newsmakers with Khambrel Marshall. Click here to watch the interview:
• Avalyn Langemeier will present “Next Level Immigration Knowledge—Latest Updates and Impacts” at HR Houston’s Gulf Coast Symposium on Wednesday, July 27, 2022. She will discuss the latest updates to immigration policy and the impact they will have on the immigration process. https://www.hrhouston.org/mpage/GCS22_Home
• Oxana Bowman and Brenda Hicks will present “Riding the Pandemic Roller Coaster with H-1B Workers—A Review of H-1B Requirements When Employment Terms Change” at HR Houston’s Gulf Coast Symposium on Thursday, July 28. She will provide HR professionals with a basic understanding of the special requirements related to changes in the employment of H-1B workers. https://www.hrhouston.org/mpage/GCS22_Home

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) has been named Editor-in-Chief of the American Immigration Lawyers Association Law Journal. Mr. Mehta is Managing Partner of Cyrus D. Mehta & Partners PLLC in New York City and is a graduate of Cambridge University and Columbia Law School. He has served in varied national roles with AILA, currently continuing his long-time service with AILA’s Ethics Committee as Vice Chair. Mr. Mehta is a board member of the New York Immigration Coalition and is a board member of Volunteers of Legal Services. He is also special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York. https://www.aila.org/advo-media/press-releases/2022/aila-law-journal-welcomes-new-editor

Mr. Mehta has authored several new blog posts: “The Long, Windy, Bumpy, and Outrageous Road to Labor Certification,” http://blog.cyrusmehta.com/2022/08/the-long-windy-bumpy-and-outrageous-road-to-labor-certification-feat-two-sunday-ads.html; and “Considerations When Terminating a Foreign Worker,” http://blog.cyrusmehta.com/2022/07/considerations-when-terminating-a-foreign-worker.html

Mr. Mehta and Kaitlyn Box co-authored a new blog post, “A Practical Guide to Spending the 3 and 10 Year Bars in the United States.” http://blog.cyrusmehta.com/2022/07/a-practical-guide-to-spending-the-3-and-10-year-bars-in-the-us.html

Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/) has authored a new blog post, “A Snitch in Time Saves How Many?—Incentivizing Noncitizens to Report Employment Law Violations.” https://www.nationofimmigrators.com/biden-administration-immigration-policies/a-snitch-in-time-saves-how-many-incentivizing-noncitizens-to-report-employment-law-violations/

Wolfsdorf Rosenthal LLP has published a new blog post: “Italy: Faster Immigration Procedure for Limited Categories of Work.” https://wolfsdorf.com/italy-faster-immigration-procedure-for-limited-categories-of-work/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the Associated Press in “Immigrants Are Not Getting Social Security Numbers at the U.S. Border.” In response to anti-immigrant activists’ claims that Border Patrol agents are handing out social security cards to undocumented immigrants at the border, Mr. Yale-Loehr explained that Border Patrol agents can’t issue social security cards: “Even if they were to do it, it would be illegal for them to do it and they could be prosecuted for doing it. I believe it is a false statement.” https://apnews.com/article/fact-check-social-security-number-border-552180846074

Mr. Yale-Loehr authored an op-ed published by The Hill, “Ending Title 42 Won’t Cause Immigration Mayhem—It Will Restore Order.” https://thehill.com/opinion/immigration/3575601-ending-title-42-wont-cause-immigration-mayhem-it-will-restore-order/

Mr. Yale-Loehr was quoted by Univision in “Forced Separation of Families at the Border, the Mark of Terror That Still Persists.” He said, “The forced separation of families during the Trump administration violated the due process rights of families. Many of them are now suing the U.S. government for damages. The forced separation also set a bad precedent, both for future presidents and for leaders of other countries, who might try the same.” He noted that criminal proceedings against asylum seekers and others trying to enter the United States “also set a bad precedent. People fleeing persecution have the right under U.S. and international law to apply for asylum. U.S. law allows criminal prosecutions against others who try to enter the country illegally, but such prosecutions do not deter desperate people. Instead, we need smart border management and more temporary work visas to allow people to legally enter the United States.” https://www.univision.com/noticias/inmigracion/separaciones-forzadas-familias-frontera-mexico-huella-de-terror-que-persiste (Spanish with English translation available)

Mr. Yale-Loehr was quoted by CBS News in “Republican States’ Lawsuits Derail Biden’s Major Immigration Policy Changes.” Mr. Yale-Loehr said federal policymaking on immigration is now primarily dictated by federal courts, not Congress or the executive branch. “I think every major policy initiative by Biden that they plan to roll out in the next year is going to be certainly challenged in the courts, and the conservative states have done a good job of judge-shopping to find judges that are likely to agree with these conservative states,” he said, noting that he expects lawsuits will continue to shape federal immigration policy unless Congress inhibits the power of judges to block nationwide initiatives or passes a broad reform of the U.S. immigration system, a prospect that has remained elusive for decades amid intense partisanship. However, he said, “that’s not the way our government is supposed to run,” and the role of the federal court system should be limited to determining whether the actions of the president and Congress are lawful and constitutional. “From the American public’s perspective, when people disagree with a policy, theoretically they can vote that person out of office, whether it’s a member of Congress or the president. But when the judges are making a policy decision that the public disagrees with, they cannot vote that judge out of office,” he noted. https://www.cbsnews.com/news/immigration-biden-republican-states-lawsuits/?intcid=CNM-00-10abd1h

Mr. Yale-Loehr was quoted by the Voice of America about the Department of State’s 2022 Trafficking in Persons Report. The video interview is in Russian at https://www.youtube.com/watch?v=AHIWV9BEAJE. Click on CC and select English to see Mr. Yale-Loehr’s comments subtitled in English. Mr. Yale-Loehr said that human trafficking is a huge and growing problem worldwide, affecting about 25 million people per year. Report: https://www.state.gov/reports/2022-trafficking-in-persons-report/

Mr. Yale-Loehr co-authored the second edition of Immigration and Nationality Law: Problems and Strategies, published by Carolina Academic Press. The book introduces the reader to the legal concepts and experience of practicing immigration law by presenting the material through a series of hypotheticals. It is designed for both law students and attorneys as it covers not only statutory provisions and key immigration law cases but also provides an understanding of the many government agencies involved in the immigration process and how to navigate the wide variety of adjudications that are central to the U.S. immigration system. The book goes beyond doctrine to implications for strategies and policy. For more information, including a video with the authors, or to order, see

Mr. Yale-Loehr was quoted by Scripps Media in “Companies Add Immigration Reimbursement to List of Benefits.” Commenting on new immigrant assistance benefits some companies are offering, Mr. Yale-Loehr said, “This is a new trend because of the tight labor market and employers need to figure out how to both attract and retain workers. And with foreign workers being a growing part of the employment base, [offering] benefits to foreign-born workers is increasingly one way that they can entice people to come work for them or to stay with them.” As examples, he noted that Amazon “has just started a reimbursement program to cover fees for a work permit renewal, which can cost between $410 and $495 every two years. [Tyson Foods], which is the biggest U.S. food processor, is expanding its immigration benefits by offering a program to its workers to give them free legal services ranging from work authorization renewals to green card and citizenship applications.” https://www.ksby.com/news/national/companies-add-immigration-reimbursement-to-list-of-benefits

Mr. Yale-Loehr was quoted by Univision in ” ‘Remain in Mexico’ Is Still in Force and It Is Not Known When and How It Will Be Dismantled.” The article notes that although the Supreme Court determined at the end of June 2022 that the government can “cancel” the Trump administration’s “remain in Mexico” policy, a series of legal requirements must be met to dismantle it and create a replacement protocol. “The Supreme Court ruling is significant for a number of reasons,” Mr. Yale-Loehr said. First, the Court “preserved its right to decide the merits of an immigration dispute, even if immigration law prohibits lower courts from issuing an injunction. Second, the Court held that the immigration statute gives immigration officials discretion over whom to admit into the United States while they await an immigration hearing. And third, the majority noted that by interpreting federal law to require the return of asylum seekers to Mexico, the lower court in the case limited the ability of the executive branch to conduct foreign relations with Mexico.” In short, he said, the Court “upheld the Biden administration’s efforts to end a Trump-era immigration policy,” although the process will take time. https://www.univision.com/noticias/inmigracion/fallo-corte-suprema-interrogantes-programa-mpp-quedate-en-mexico-desmantelamiento (in Spanish, with English translation available)

Mr. Yale-Loehr was quoted by several media outlets relating to the Supreme Court’s decision on the “Remain in Mexico” policy:

• “Explaining the Supreme Court Immigration Ruling on ‘Remain in Mexico,’ ” PolitiFact. He explained that historically, when people believe an immigration policy violates immigration law, they can sue the government, which initiates a court case. However, these cases often take a long time, so the person or group suing can ask the courts to either stop or restart the policy if it is causing immediate harm, which is called an injunction, he noted. https://www.politifact.com/article/2022/jul/07/explaining-supreme-court-immigration-ruling-remain/
• “Biden Administration Can Drop ‘Remain in Mexico’ Policy, But What Will it Use Instead?,” Marketplace. He said, “The court today recognized that this is really part of a bigger political problem of not enough funding for our broken immigration system.” https://www.marketplace.org/2022/07/05/biden-administration-can-drop-remain-in-mexico-policy-but-what-will-it-use-instead/

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022 – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap for the additional 23,500 visas made available for returning workers only, under the recently announced H-2B supplemental cap temporary final rule.

2. USCIS Releases New Forms for EB-5 Immigrant Investor Program – U.S. Citizenship and Immigration Services has released two new forms under the EB-5 Reform and Integrity Act of 2022.

3. SEVIS Update: COVID-19 Guidance Extended for Nonimmigrant Students – U.S. Immigration and Customs Enforcement’s March 2020 guidance continues for the 2022-23 academic year only for nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to the Student and Exchange Visitor Program’s existing regulations regarding online learning.

4. CBP Expands Biometric Facial Recognition Technology at U.S. International Airports – Travelers arriving at an international airport in the United States will pause for a photo at the primary inspection point. U.S. travelers and foreign nationals who are not required to provide biometrics and wish to opt out of the new biometric process can notify a CBP officer as they approach the primary inspection point.

5. Public Charge Resources Webpage Updated – Among other updates, a question-and-answer section addresses concerns and misconceptions about the public charge ground of inadmissibility.

6. Investors File Lawsuit Against DHS To Stop EB-5 Regional Center Decertifications – A group of investment and capital firms filed a lawsuit against the Department of Homeland Security, arguing that when U.S. Citizenship and Immigration Services decertified existing EB-5 regional centers, it violated the Administrative Procedure Act and misinterpreted the EB-5 Reform and Integrity Act of 2022.

7. USCIS To Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions – U.S. Citizenship and Immigration Services is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.

8. DOL Clarifies Method of Contacting AFL-CIO Required Under Rule Increasing Number of H-2B Visas Available in Second Half of FY 2022 – Examples of how to contact the AFL-CIO, as provided in a temporary final rule, include emailing or mailing the job order, along with a request for assistance to recruit workers, to the appropriate AFL-CIO office.

9. DOL Issues Guidance on Employment of H-2B Workers in Unapproved Job Classifications – The memo provides information on the “harms inflicted on the U.S. and H-2B workforce” by such employment and provides “guidance on the sanctions and remedies” that the Wage and Hour Division may implement.

10. Additional 35,000 H-2B Visas Available for Second Half of Fiscal Year – The visas are for U.S. employers seeking to employ additional temporary nonagricultural workers on or after April 1, 2022, through September 30, 2022.

11. DHS Announces TPS Designation, Registration Process for Afghans – The registration period began on May 20, 2022, and runs through November 20, 2023. USCIS estimates 72,500 individuals currently in the United States may be eligible.

12. June Visa Bulletin Includes Updates on ‘Other Workers,’ China, Diversity Visa Availability – Among other things, the bulletin notes that high number use in the Employment Third Preference “Other Workers” category has necessitated the establishment of a worldwide final action date in June.

13. Federal Judge Blocks Effort to End Title 42 Policy at U.S.-Mexico Border – The Department of Justice plans to appeal the decision while enforcing the Title 42 policy pending appeal.

14. New Forms, New Program Requirements Announced for Entities Seeking Regional Center Designation Under EB-5 Immigrant Investor Program – USCIS published two new forms for regional center designation under the EB-5 Immigrant Investor Program. USCIS said that all entities seeking regional center designation must submit these forms in compliance with new program requirements, which began May 14, 2022, and are effective through September 30, 2027. The agency held a related listening session and released a Q&A, and members of Congress sent a letter to the Department of Homeland Security.

15. Foreign Labor Certification Updates – The Department of Labor’s Office of Foreign Labor Certification announced updates to public disclosure data and selected program statistics; the H-2B Foreign Labor Recruiter List; and tips and assistance for stakeholders filing applications for prevailing wage determinations.

16. USCIS Corrects Eligibility Date on South Sudan TPS-Based EADs – USCIS corrected “September 17, 2021” to “May 2, 2022” as the eligibility date that should be showing on South Sudan temporary protected status-based employment authorization documents (EADs) to receive an automatic 180-day EAD extension through November 1, 2022.

17. New Lockbox Filing Location Updates Webpage – USCIS launched a new webpage with lockbox filing location updates.

18. State Dept. Updates Visa Reciprocity Schedule for Kenya – On May 9, 2022, the Department of State updated the visa reciprocity schedule for Kenya for several nonimmigrant visa categories.

19. USCIS Increases Automatic Work Permit Extension Period for Certain Applicants – USCIS announced a temporary final rule, effective May 4, 2022, that increases to up to 540 days the automatic extension period for work authorization and Employment Authorization Documents (EADs) available to certain EAD renewal applicants. The rule is expected to affect approximately 87,000 workers who have filed for renewal of their work authorization and whose 180-day automatic extension periods have expired or are about to expire.

20. State Dept. Appeals Four Court Orders on Diversity Visa Adjudications and Processing – The Department of State released a statement summarizing four court orders regarding the reservation of numbers for and/or adjudication of DV-2020 and DV-2021 diversity visas, and announcing that it is appealing the orders “because the Department believes the courts misinterpreted the law.”

21. Case Processing Info Changes Announced – Users can now immediately find processing time information for their particular type of case rather than seeing an aggregate of all related case types.

22. CBP Urges Travelers to Apply for I-94 Online Before Arriving at U.S. Land Borders – To reduce wait times, U.S. Customs and Border Protection is urging travelers who require a Form I-94, Arrival/Departure Record, to apply and prepay online before arriving at a U.S. land border.

23. ABIL Global: Schengen Area – This article discusses how to calculate the 90/180-days allowance for non-European Union nationals traveling to Schengen countries, and the new Electronic Entry System.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – June 2022

1. Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022

U.S. Citizenship and Immigration Services (USCIS) announced on May 31, 2022, that it has received enough petitions to reach the cap for the additional 23,500 visas made available for returning workers only, under the recently announced H-2B supplemental cap temporary final rule, which increased by up to 35,000 the cap for additional H-2B nonimmigrant visas through the end of fiscal year (FY) 2022.

The random selection, completed on May 27, included all H-2B cap-subject petitions filed under the H-2B returning worker allotment that were received between May 19 and May 25. Petitions accepted for processing will have a receipt date of May 31, 2022.

USCIS said that petitioners whose workers were not selected for the 23,500 returning worker allotment “are encouraged to refile for workers from El Salvador, Guatemala, Honduras and Haiti while visas for that allotment remain available.” The final date for filing petitions for nationals of those countries who are exempt from the returning worker requirement is September 15, 2022, or when the cap is reached, whichever occurs first.

The agency will continue to accept H-2B petitions for workers filing under the El Salvador, Guatemala, Honduras, and Haiti allotment, as well as those that are exempt from the congressionally mandated cap. This includes petitions for:

• Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.

Details:

• “Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022,” USCIS alert, May 31, 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022

• “Temporary Increase in H-2B Nonimmigrant Visas for FY 2022,” USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2022

• “DHS and DOL Announce Availability of Additional H-2B Visas for Second Half of Fiscal Year,” USCIS news release, May 16, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-second-half-of-fiscal-year

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2. USCIS Releases New Forms for EB-5 Immigrant Investor Program

U.S. Citizenship and Immigration Services (USCIS) has released two new forms under the EB-5 Reform and Integrity Act of 2022. The new forms are:

• Form I-956F, Application for Approval of an Investment in a Commercial Enterprise
• Form I-956G, Regional Center Annual Statement

USCIS explained that Form I-956F can only be filed by an approved regional center. Form I-956F is similar in some respects to an “exemplar” submission on Form I-924 under the previous program; however, Form I-956F is required by statute for regional centers to apply for approval of each particular investment offering through an associated new commercial enterprise. Form I-956G takes the place of Form I-924A from the previous program but incorporates the increased statutory reporting requirements.

The next series of forms to be released are Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E, Immigrant Petition by Regional Center Investor. USCIS will notify stakeholders once these forms are available.

Effective June 2, 2022, Forms I-956F and I-956G must be submitted in compliance with new program requirements. The filing fee is $17,795 for Form I-956F and $3,035 for Form I-956G.

Details:

• USCIS alert, June 2, 2022, https://www.uscis.gov/newsroom/alerts/uscis-releases-new-forms-for-immigrant-investor-program

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3. SEVIS Update: COVID-19 Guidance Extended for Nonimmigrant Students

U.S. Immigration and Customs Enforcement (ICE) released guidance regarding distance learning to all Student and Exchange Visitor Information System (SEVIS) users to clarify that its March 2020 guidance continues for the 2022-23 academic year only for nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to the Student and Exchange Visitor Program’s existing regulations regarding online learning.

The March 2020 guidance “enables schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns created by COVID-19,” ICE said.

Details:

• “Broadcast Message: ICE Clarifies Continuation of March 2020 Guidance for the 2022-23 Academic Year,” ICE, May 31, 2022, https://www.ice.gov/doclib/sevis/pdf/bcm2205-03.pdf

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4. CBP Expands Biometric Facial Recognition Technology at U.S. International Airports

U.S. Customs and Border Protection (CBP) has expanded biometric facial comparison technology at all international airports across the United States under the “Simplified Arrival” process. CBP said that this expansion complements biometric boarding at select departure locations.

Travelers arriving at an international airport will pause for a photo at the primary inspection point. A CBP officer will review and query the travel document, which will retrieve the traveler’s passport or visa photo from government holdings and compare it to the new photo. CBP said the process “takes a few seconds and is more than 98% accurate.”

CBP said that U.S. travelers and foreign nationals who are not required to provide biometrics and wish to opt out of the new biometric process can notify a CBP officer as they approach the primary inspection point. These travelers must present a valid travel document for inspection by a CBP officer and will be processed consistent with existing requirements for admission into the United States.

CBP explained that “Simplified Arrival” is an enhanced international arrival process that uses facial biometrics to automate the manual document checks required for admission into the United States. The process fulfills a Congressional mandate to biometrically record the entry and exit of non-U.S. citizens. Foreign travelers who have traveled to the United States previously “may no longer need to provide fingerprints, as their identity will be confirmed through the touchless facial biometric process.” CBP said that more than 171 million travelers have participated in the biometric facial comparison process at air, land, and sea ports of entry.

Details:

• CBP media release, June 2, 2022,

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5. Public Charge Resources Webpage Updated

U.S. Citizenship and Immigration Services (USCIS) has updated its public charge resources webpage “with more information to help reduce undue fear and confusion among immigrants and their families, including U.S. citizens and their children, that may prevent them from obtaining access to critical government services available to them.”

A question-and-answer section addresses concerns and misconceptions about the public charge ground of inadmissibility. For example, USCIS does not consider vaccines or public benefits specifically related to the COVID-19 pandemic when making public charge determinations. “We encourage everyone, including noncitizens, to seek necessary medical care, including treatment or preventive services for COVID-19. Noncitizens may seek pandemic-related benefits and services (including food assistance, housing programs, and others) for which they are eligible—without fear of negative consequences to their immigration status.”

The updated content also “clarifies that relatively few noncitizens in the United States are both subject to the public charge ground of inadmissibility and eligible for the public benefits considered under the 1999 Interim Field Guidance, including Supplemental Security Income, Temporary Assistance for Needy Families, and programs (including Medicaid) supporting noncitizens who are institutionalized for long-term care at government expense,” USCIS said.

Details:

• USCIS alert, June 3, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-public-charge-resources-webpage-to-provide-information-on-the-public-charge-ground-of

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6. Investors File Lawsuit Against DHS To Stop EB-5 Regional Center Decertifications

A group of investment and capital firms filed a lawsuit on May 24, 2022, against the Department of Homeland Security, arguing that when U.S. Citizenship and Immigration Services (USCIS) decertified existing EB-5 regional centers, it violated the Administrative Procedure Act and misinterpreted the EB-5 Reform and Integrity Act of 2022, which was signed into law following a lapse in authorization for the EB-5 Regional Center Program. Plaintiffs say that by categorically decertifying more than 600 existing EB-5 regional centers and requiring them to recertify, USCIS “eviscerated” the program and determined that a wholly new regional center program was created rather than following congressional intent to reauthorize the program with a few changes and allow existing regional centers to continue their work.

Alleging that USCIS’s action was “unlawful for a host of reasons,” plaintiffs said the agency’s action meant that “all existing regional centers, which already have billions of dollars in invested capital, ongoing development projects, and investors awaiting adjudication of their visa petitions, must effectively pause all revenue-generating operations (while still maintaining regulatory obligations to existing investors) indefinitely until USCIS approves their new applications. At current processing rates, it will take well over a decade for more than 600 programs to become redesignated.”

Plaintiffs are represented by H. Ronald Klasko and Daniel B. Lundy, of Klasko Immigration Law Partners LLP, and Paul W. Hughes, Andrew A. Lyons-Berg, and Alex C. Boota, of McDermott Will & Emery LLP.

This is the second lawsuit challenging USCIS’s claim that all regional centers must be redesignated. A preliminary injunction hearing in Behring Regional Center LLC v. Mayorkas, No. 3-22-cv-02487-VC (N.D. Cal.), will be held June 2.

Details:

• EB5 Capital v. DHS, May 24, 2022,
• “DHS ‘Decimated’ EB-5 Visa Capital Firms, Investors Say,” Law360, May 24, 2022, https://www.law360.com/articles/1496566/dhs-decimated-eb-5-visa-capital-firms-investors-say (registration required)

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7. USCIS To Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions

U.S. Citizenship and Immigration Services (USCIS) is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This expansion of premium processing applies only to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW), USCIS said. Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.

USCIS said the expansion will occur in phases:

• Beginning June 1, 2022, USCIS is accepting Form I-907 requests for E13 multinational executive and manager petitions received on or before January 1, 2021.
• Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.
• USCIS will continue working toward premium processing availability of additional Form I-140 petitions, Form I-539, and Form I-765 in fiscal year 2022.

USCIS said it will reject premium processing requests for these Form I-140 classifications that were filed before their start date of June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a premium processing request.

For the month of June, USCIS will accept both the 09/30/20 and the 05/31/22 editions of Form
I-907. Starting July 1, the agency will reject the older 09/30/20 edition of Form I-907.

Details:

• USCIS alert, May 24, 2022, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-premium-processing-for-certain-previously-filed-eb-1-and-eb-2-form-i-140

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8. DOL Clarifies Method of Contacting AFL-CIO Required Under Rule Increasing Number of H-2B Visas Available in Second Half of FY 2022

A temporary final rule issued by the Department of Labor (DOL) on May 18, 2022, included additional recruitment requirements for certain employers. One such requirement is that where the occupation or industry is traditionally or customarily unionized, “the employer must contact (by mail, email or other effective means) the nearest American Federation of Labor and Congress of Industrial Organizations [AFL-CIO] office covering the area of intended employment and provide written notice of the job opportunity, by providing a copy of the job order placed … and request assistance in recruiting qualified U.S. workers for the job.”

Examples of such contact provided in the rule include emailing or mailing the job order, along with a request for assistance to recruit workers, to the appropriate AFL-CIO office. To aid employers who must conduct this additional recruitment step, one effective means of contacting the nearest AFL-CIO office covering the area of intended employment is to email the job order and request for assistance to [email protected] or contacting the national AFL-CIO by mail at:

AFL-CIO
Attn: H-2B
815 Black Lives Matter Plaza, NW
Washington, DC  20005

DOL said that when received, the agency will distribute these materials to the most appropriate local AFL-CIO office serving the area of intended employment for that job opportunity. DOL said employers “are encouraged to contact the AFL-CIO using the email or mailing address above, though contact directly with the AFL-CIO office covering the area of intended employment is also acceptable. Employers are reminded to retain documentation of contact with the AFL-CIO as required.”

Details:

• DOL announcement, May 27, 2022, https://www.dol.gov/agencies/eta/foreign-labor
• Temporary final rule, 87 Fed. Reg. 30334 (May 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-18/pdf/2022-10631.pdf

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9. DOL Issues Guidance on Employment of H-2B Workers in Unapproved Job Classifications

The Department of Labor’s Wage and Hour Division (WHD) released a bulletin to the field regarding employment of H-2B workers in unapproved job classifications (i.e., a job classification not listed on the Application for Temporary Employment Certification (TEC), Form ETA-9142B). The memo notes that such employment violates the requirement that employers may not place H-2B workers in positions not listed on the TEC application.

The memo provides information on the “harms inflicted on the U.S. and H-2B workforce” by such employment and provides “guidance on the sanctions and remedies” that the WHD may implement.

Details:

• “Employment of H-2B Workers in a Job Classification Not Listed on the TEC Application (Form ETA-9142B) in the H-2B Visa Program,” DOL/WHD Field Assistance Bulletin No. 2022-3, Apr. 13, 2022, https://www.dol.gov/sites/dolgov/files/WHD/fab/2022-3.pdf

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10. Additional 35,000 H-2B Visas Available for Second Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced a temporary final rule making available an additional 35,000 H-2B temporary nonagricultural worker visas during the second half of fiscal year (FY) 2022. The visas are for U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022.

The supplemental H-2B visa allocation consists of 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas are reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti, regardless of whether they are returning workers. The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on February 25, 2022.

In support of the temporary final rule, the Office of Foreign Labor Certification (OFLC) posted a new Form ETA-9142-B-CAA-6 and accompanying instructions. The TFR requires an employer to attest, among other things, to the fact that it is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. This attestation must be submitted to U.S. Citizenship and Immigration Services along with Form I-129 in support of an H-2B application subject to the H-2B cap by September 30, 2022.

Details:

• USCIS news release, May 16, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-second-half-of-fiscal-year
• DHS/DOL temporary final rule, 87 Fed. Reg. 30334 (May 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-18/pdf/2022-10631.pdf
• DOL forms, including Attestation for Employers, https://www.dol.gov/agencies/eta/foreign-labor/forms

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11. DHS Announces TPS Designation, Registration Process for Afghans

The Department of Homeland Security has provided information on how to register for temporary protected status (TPS) under Afghanistan’s 18-month designation. The registration period began on May 20, 2022, and runs through November 20, 2023. USCIS estimates 72,500 individuals currently in the United States may be eligible for TPS under the designation of Afghanistan.

To be eligible for TPS under this designation, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and continuous physical presence in the United States since May 20, 2022. Afghan nationals currently not residing in the United States or who arrived in the United States after March 15, 2022, are not eligible for TPS under this designation.

DHS said that through Operation Allies Welcome, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis for humanitarian reasons for a period of two years and received work authorization. These individuals may also be eligible for TPS.

Details:

• Designation of Afghanistan for Temporary Protected Status, DHS (USCIS), 87 Fed. Reg. 30976 (May 20, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-20/pdf/2022-10923.pdf
• USCIS news release, May 19, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-announces-registration-process-for-temporary-protected-status-for-afghanistan
• “Secretary Mayorkas Designates Afghanistan for Temporary Protected Status,” DHS, Mar. 16, 2022, https://www.dhs.gov/news/2022/03/16/secretary-mayorkas-designates-afghanistan-temporary-protected-status

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12. June Visa Bulletin Includes Updates on ‘Other Workers,’ China, Diversity Visa Availability

The Department of State’s Visa Bulletin for June 2022 includes the following information:

1. Establishment of Employment Third Preference “Other Workers” (EW) Final Action Date

High number use in the Employment Third Preference “Other Workers” (EW) category has necessitated the establishment of a worldwide final action date in June to hold number use within the maximum allowed under the FY-2022 annual limit. All countries are subject to a final action date of 08MAY19 except for China-mainland born, which is subject to a 01JUN12 final action date and India, which is subject to a 15JAN12 final action date.

1. Establishment of C5 and T5 Final Action Date and Application Filing Date for China-Mainland Born

It has become necessary to establish a final action date and application filing date for C5 and T5 China-mainland born because sufficient demand has materialized as readers were cautioned was a possibility in Item D of the May 2022 Visa Bulletin. China-mainland born C5 and T5 applicants are subject to a 22NOV15 final action date and an application filing date of 15DEC15.

1. Availability of Diversity Visas (DV)

Most regions have been set to “Current” for June 2022 in an effort to maximize number use during the DV-2022 program year. However, rank cut-offs could be re-established for any region or country in future months to keep number use within the applicable annual limits.

Details:

• Dept. of State Visa Bulletin for June 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-june-2022.html

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13. Federal Judge Blocks Effort to End Title 42 Policy at U.S.-Mexico Border

Shortly before the Centers for Disease Control (CDC) was set to terminate its Trump-era COVID-19 pandemic restriction at the U.S.-Mexico border, known as “Title 42,” a federal judge in Louisiana blocked its termination temporarily with a nationwide preliminary injunction. The judge found that several dozen Republican-led states were likely to prevail on their claims against terminating the policy based on the Administrative Procedure Act, and noted that termination would negatively affect plaintiff states and the Department of Homeland Security. He concluded that the policy should continue while the states’ lawsuit proceeds.

The Department of Justice plans to appeal the decision while enforcing the Title 42 policy pending appeal.

Details:

• State of Louisiana v. CDC, https://s3.documentcloud.org/documents/22026721/title-42-preliminary-injunction.pdf
• “Federal Judge Blocks Biden Administration From Lifting Title 42 for Now,” CNN, May 20, 2022, https://www.cnn.com/2022/05/20/politics/title-42-biden-us-mexico-border/index.html

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14. New Forms, New Program Requirements Announced for Entities Seeking Regional Center Designation Under EB-5 Immigrant Investor Program

U.S. Citizenship and Immigration Services (USCIS) published two new forms for regional center designation under the EB-5 Immigrant Investor Program: Form I-956, Application for Regional Center Designation, and Form I-956H, Bona Fides of Persons Involved with Regional Center Program. USCIS said that all entities seeking regional center designation must submit these forms in compliance with new program requirements, which began May 14, 2022, and are effective through September 30, 2027.

Below are highlights of related news:

• USCIS said it will continue to adjudicate Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, and will adjudicate Form I-829 petitions associated with Form I-526, Immigrant Petition by Alien Entrepreneur, filed before March 15, 2022, under the applicable eligibility requirements in place before enactment of the EB-5 Reform and Integrity Act of 2022.
• USCIS said it also has resumed processing of regional center-based Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before the sunset of the previous regional center program on June 30, 2021. The agency will adjudicate all Form I-526 petitions filed before March 15, 2022, according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place before the enactment of the new law). USCIS will continue to process Form I-526 petitions under the “visa availability approach,” “prioritizing those Form I-526 petitions for investors with an available visa or a visa that will be available soon.” USCIS will continue to reject all Form I-526 petitions received on or after July 1, 2021, when the petition indicates that the petitioner’s investment is associated with a regional center.
• The filing fee for the I-956 is $17,795. (No, that’s not a typo.) There is no filing fee for the I-956H, but a biometric services fee of $85 per person is required. Filing and biometric service fees are final and nonrefundable, regardless of any action USCIS takes on the application, or if the applicant withdraws the request. USCIS will reject the form if the applicant submits an incorrect fee.
• The agency released a related Q&A and held a “Listening Session” on April 29, 2022, that received negative reviews.
• Four senior members of Congress sent a letter on May 9, 2022, to the Department of Homeland Security (DHS). Among other things, the letter calls for DHS to confirm compliance with the new integrity measures required under the EB-5 Reform and Integrity Act of 2022 “without the need for a full-scale redesignation of existing regional centers.” The letter recommends a “transition” to avoid administrative burdens for the agency and “unnecessary complications to designated regional centers who have remained in good standing with USCIS and complied with the rules even during the program’s lapse.” The letter says, “Current guidance on the USCIS website requiring new regional center designations for every existing regional center is confusing and causing great concern in the EB-5 stakeholder community. We believe that there should be stakeholder engagement and then guidance on the implementation of the program.” The letter notes that an interpretation requiring new regional center designations would “result in all existing investors without approved conditional permanent residency facing denial.” The letter was signed by Rep. Jerrold Nadler (D-NY) and Sens. Chuck Schumer (D-NY), John Cornyn (R-TX), and Lindsey Graham (R-SC).

Details:

• USCIS alert, https://www.uscis.gov/newsroom/alerts/two-new-forms-published-for-regional-center-designation
• USCIS alerts, EB-5 Immigrant Investor Program, https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program
• USCIS Q&A (EB-5 Questions and Answers, updated April 2022), https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-questions-and-answers-updated-april-2022
• EB-5 Reform and Integrity Act of 2022 (H.R. 2471, Consolidated Appropriations Act, 2022), https://www.congress.gov/bill/117th-congress/house-bill/2471/
• USCIS EB-5 Reform and Integrity Act of 2022 Listening Session, https://www.uscis.gov/outreach/notes-from-previous-engagements/uscis-eb-5-reform-and-integrity-act-of-2022-listening-session

• Listening Session remarks by Ur Jaddou, USCIS Director, Apr. 29, 2022, https://www.uscis.gov/sites/default/files/document/outreach-engagements/EB-5_Reform_and_Integrity_Act_of_2022_Listening_Session.pdf

• Form I-956, Application for Regional Center Designation, https://www.uscis.gov/i-956
• Form I-956H, Bona Fides of Persons Involved with Regional Center Program, https://www.uscis.gov/i-956
• “USCIS Drops Bombshell EB-5 Q&A Hours Before One-Sided, Overwhelmingly Negative “Listening Session,” Investment Migration Insider, May 3, 2022, https://www.imidaily.com/program-updates/uscis-drops-bombshell-eb-5-qa-hours-before-one-sided-overwhelmingly-negative-listening-session/

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15. Foreign Labor Certification Updates

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced updates to public disclosure data and selected program statistics; the H-2B Foreign Labor Recruiter List; and tips and assistance for stakeholders filing applications for prevailing wage determinations. Below are highlights.

Public disclosure data and selected program statistics for Q2 of fiscal year (FY) 2022. The OFLC released a comprehensive set of public disclosure data through the second quarter of FY 2022. The OFLC drew the data from employer applications requesting prevailing wage determinations and labor certifications for the PERM, Labor Condition Application (LCA) (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs. The files include all final determinations OFLC issued for these programs during the October 1, 2021, through March 31, 2022, reporting period of FY 2022. OFLC also released selected program statistics for Q2 of FY 2022 for the same programs. https://www.dol.gov/agencies/eta/foreign-labor/performance

H-2B Foreign Labor Recruiter List for Q2 of FY 2022. The OFLC published an updated list of foreign labor recruiters for the H-2B program. The list contains the name and location of persons or entities identified on Appendix C of the Form ETA-9142B that were hired by, or working for, the recruiter that employers have indicated they engaged, or planned to engage, in the recruitment of prospective H-2B workers to perform the work described on their H-2B application. The H-2B Foreign Labor Recruiter List includes only those names and locations associated with H-2B applications that were processed or issued a final decision during the October 1, 2021 through March 31, 2022. https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list (Foreign Labor Recruiter List); https://www.dol.gov/agencies/eta/foreign-labor/faqs/print (FAQs)

Tips and assistance for stakeholders filing applications for prevailing wage determinations. The OFLC hosted a webinar on April 19, 2022, providing tips and assistance for stakeholders on the process of filing Form ETA-9141, Application for Prevailing Wage Determination, for the PERM and LCA programs. The recording and presentation materials are linked via the Prevailing Wage Information and Resources page (scroll down to Webinars). https://www.dol.gov/agencies/eta/foreign-labor/wages

Details:

• OFLC announcements, https://www.dol.gov/agencies/eta/foreign-labor

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16. USCIS Corrects Eligibility Date on South Sudan TPS-Based EADs

U.S. Citizenship and Immigration Services (USCIS) issued a correction on May 10, 2022, to its notice on the extension and redesignation of South Sudan for temporary protected status (TPS), which was published on March 3, 2022. Under the “General Employment-Related Information for TPS Applicants and Their Employers” section of the original notice, USCIS corrected “September 17, 2021” to “May 2, 2022” as the eligibility date that should be showing on South Sudan TPS-based employment authorization documents (EADs) to receive an automatic 180-day EAD extension through November 1, 2022.

Details:

• USCIS notice/correction, 87 Fed. Reg. 28030 (May 10, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-10/pdf/2022-10018.pdf

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17. New Lockbox Filing Location Updates Webpage

U.S. Citizenship and Immigration Services (USCIS) launched a new webpage with lockbox filing location updates. For example, the webpage notes that:

• On May 2, 2022, USCIS updated the filing locations for applicants filing Form I-821, Application for Temporary Protected Status, under the designation for Ukraine.
• On May 9, 2022, USCIS added the filing locations for certain applicants filing Form I-765, Application for Employment Authorization, under eligibility category (c)(14) (a noncitizen granted deferred action).
• On May 15, 2022, USCIS added the filing locations for applicants filing Form I-956, Application for Regional Center Designation, and Form I-956H, Bona Fides of Persons Involved with Regional Center Program, to request designation as a regional center.

Details:

• USCIS Lockbox Filing Location Updates, updated May 10, 2022, https://www.uscis.gov/forms/forms-updates/lockbox-filing-location-updates

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18. State Dept. Updates Visa Reciprocity Schedule for Kenya

On May 9, 2022, the Department of State updated the visa reciprocity schedule for Kenya for several nonimmigrant visa categories.

Details:

• Reciprocity: What’s New?, Dept. of State, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/reciprocity-whats-new.html
• Kenya Reciprocity Schedule, https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country/Kenya.html

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19. USCIS Increases Automatic Work Permit Extension Period for Certain Applicants

U.S. Citizenship and Immigration Services (USCIS) announced a temporary final rule, effective May 4, 2022, that increases to up to 540 days the automatic extension period for work authorization and Employment Authorization Documents (EADs) available to certain EAD renewal applicants.

USCIS said the increased extension period “will help avoid gaps in employment for noncitizens with pending EAD renewal applications and stabilize the continuity of operations for U.S. employers.” The rule is expected to affect approximately 87,000 workers who have filed for renewal of their work authorization and whose 180-day automatic extension periods have expired or are about to expire.

USCIS released the following details:

• The TFR, which only applies to those EAD categories currently eligible for an automatic 180-day extension, will temporarily provide up to 360 days of additional automatic extension time (for a total of 540 days) to eligible applicants with a timely filed Form I-765 renewal application pending during the 18-month period after publication of the temporary final rule “while USCIS continues to work through pending caseloads that were exacerbated by the COVID-19 pandemic,” USCIS said. Beginning October 27, 2023, automatic extensions of employment authorization and EAD validity will revert to the up-to-180-day period for eligible applicants who timely file Form I-765 renewal applications.
• Noncitizens with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity, beginning on May 4, 2022 and lasting up to 540 days from the expiration date of their EAD, such that they may resume employment if they are still within the up to 540-day automatic extension period and are otherwise eligible. Noncitizens with a pending renewal application still covered under the 180-day automatic extension will be granted an additional up to 360-day extension, for a total of up to 540 days past the expiration of the current EAD. Noncitizens with a pending renewal application and valid EAD on May 4, 2022, or who timely file an EAD renewal application before October 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed.
• The automatic extension generally will end upon notification of a final decision on the renewal application or the end of the up-to-540-day period (i.e., up to 540 days after the expiration date on the applicant’s facially expired EAD), whichever comes earlier.
• Certain noncitizens who are in the United States may file a Form I-765, Application for Employment Authorization, with USCIS to request employment authorization and an EAD. Other noncitizens whose immigration status authorizes them to work in the United States without restrictions may also use Form I-765 to apply for an EAD that shows such authorization.
• Systematic Alien Verification for Entitlements (SAVE) will generally verify employment authorization or this EAD auto-extension as part of initial verification. Additional verification may be required in limited instances such as when the applicant’s data provided by the user agency does not match federal immigration records.

Details:

• USCIS news release, May 3, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-increases-automatic-extension-period-of-work-permits-for-certain-applicants
• “DHS Publishes Rule Temporarily Increasing Automatic Extension Period of Employment Authorization and/or EADs for Certain Individuals” (includes information on documentation benefit applicants will have whose work authorization and/or EADs are extended up to 540 days), USCIS (SAVE), May 4, 2022, https://www.uscis.gov/save/whats-new/dhs-publishes-rule-temporarily-increasing-automatic-extension-period-of-employment-authorization
• “Automatic Employment Authorization Document (EAD) Extension,” USCIS, updated May 4, 2022, https://www.uscis.gov/eadautoextend
• USCIS temporary final rule, 87 Fed. Reg. 26614 (May 4, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-04/pdf/2022-09539.pdf
• “USCIS Issues New Rule on Employment Authorization,” Forbes, https://www.forbes.com/sites/stuartanderson/2022/05/03/uscis-issues-new-rule-on-employment-authorization/?sh=9f27ebd10b13

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20. State Dept. Appeals Four Court Orders on Diversity Visa Adjudications and Processing

The Department of State (DOS) released a statement summarizing four court orders regarding the reservation of numbers for and/or adjudication of DV-2020 and DV-2021 diversity visas, and announcing that it is appealing the orders “because the Department believes the courts misinterpreted the law.”

DOS explained that while the appeal is pending, the courts have granted stays with respect to adjudicating visas from prior years, meaning that “the Department is not required to adjudicate visas from prior years until the appeals court issues its decision.” DOS explained that the courts, however, required the Department to complete the systems modifications necessary to process DV cases from prior years, which DOS said it will do in compliance with the orders.

DOS said it will publish additional public guidance regarding these cases “should it be necessary to do so.”

Details:

• DOS news release, May 3, 2022, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-2020-and-2021-updates.html

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21. Case Processing Info Changes Announced

U.S. Citizenship and Immigration Services (USCIS) announced changes to case processing information available online. Users can now immediately find processing time information for their particular type of case rather than seeing an aggregate of all related case types. Additional changes include:

• Adding drop-down options for form categories to help narrow results to the processing times that are relevant to a case;
• Adding a case inquiry tool where the user can insert their receipt date and get an immediate answer on whether they should contact USCIS with questions about their particular case; if so, benefit requestors will be provided a link to submit a case inquiry online;
• Displaying a single 80^th-percentile processing time (rather than a range) to simplify the information provided and improve the ability of users to estimate how long it is likely to take USCIS to process a benefit request; and
• Revising, streamlining, and adding more content to the processing times webpages, including a new FAQ page.

Details:

• USCIS news release, May 5, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-simplifying-improving-communication-of-case-processing-data

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22. CBP Urges Travelers to Apply for I-94 Online Before Arriving at U.S. Land Borders

To reduce wait times, U.S. Customs and Border Protection (CBP) is urging travelers who require a Form I-94, Arrival/Departure Record, to apply and prepay online before arriving at a U.S. land border.

An I-94 is needed by all visitors except U.S. citizens, returning residents, those with immigrant visas, and most Canadian citizens visiting or in transit. Travelers are issued an I-94 during the admission process at the port of entry.

Details:

• CBP release, Apr. 29, 2022,
• Travel information, CBP, https://www.cbp.gov/travel
• Advisories and wait times, CBP, https://www.cbp.gov/travel/advisories-wait-times

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23. ABIL Global: Schengen Area

This article discusses how to calculate the 90/180-days allowance for non-European Union nationals traveling to Schengen countries, and the new Electronic Entry System.

How to Count Your 90 Days

Non-European Union (EU) visitors can stay in the Schengen countries for maximum of 90 days in any 180-day period, but the calculation is not easy.

The Schengen area currently includes 26 EU countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

The scannable QR code below leads to EU Migration and Home Affairs, which includes visa policy information and lists of countries whose citizens must have a visa or are exempt from visa requirements when crossing Schengen external borders.

Third-country nationals (e.g., those who are not citizens of the EU and Iceland, Norway, Liechtenstein, or Switzerland), irrespective of being visa-required or exempt, who intend to travel to the Schengen area for a short trip for business or tourism can stay for a maximum of 90 days in any 180-day period. A few terms and rules apply:

Date of entry: The first day of stay on the territory of the Schengen Member State

Date of exit: The last day of stay in the Schengen Area

This applies only to short-term visitors. Periods of stay authorized under a residence permit or a long-stay visa are not taken into account in the calculation of the duration of stay on the territory of the Member States.

Reference to “any 180-day period” implies the application of a “moving” 180-day reference period, looking backwards at each day of the stay (be it at the entry or at the day of an actual check), into the last 180-day period, to verify if the 90-days/180-day-period requirement continues to be fulfilled.

As noted above, calculation is often not easy. The EU has created an online calculator.

New Entry/Exit System

The new Entry/Exit System (EES), to be operational in 2022, will automatically identify those who overstay their periods of admission. It will collect identity information and the date and place of entry and exit. The EES will apply to non-EU nationals, visa-required and visa-exempt travelers in the Schengen area. It will replace manual stamping of passports.

Details:

• “How to Count Your Schengen 90 Days,” Medium, https://medium.com/studiomazzeschi/how-to-count-your-schengen-90-days-ee96f5d25326
• Entry/Exit System (EES), Migration and Home Affairs, European Commission, https://ec.europa.eu/home-affairs/policies/schengen-borders-and-visa/smart-borders/entry-exit-system_en

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New Publications and Items of Interest

USCIS public engagement on Afghanistan TPS. U.S. Citizenship and Immigration Services (USCIS) will hold a public engagement on temporary protected status for Afghanistan on Thursday, June 16, 2022, from 2-3 p.m. ET. USCIS will provide an overview of the TPS designation and hold a question-and-answer session. To register, visit the USCIS registration page, enter your email address and select “Submit,” then select “Subscriber Preferences,” “Questions,” complete the questions, and select “Submit” again.

Employment authorization document (EAD) extension calculator. U.S. Citizenship and Immigration Services has launched an EAD Automatic Extension Calculator. The calculator will “calculate the new EAD expiration date for eligible employees” affected by an automatic extension for certain renewal applicants from up to 180 days to up to 540 days. https://www.uscis.gov/i-9-central/form-i-9-resources/employment-authorization-document-ead-automatic-extension-calculator

National Visa Center Public Inquiry telephone line suspended. The National Visa Center (NVC) has suspended its public inquiry telephone line. The suspension “will not impede any essential functions of NVC,” the Department of State said. The announcement includes tips for interacting with NVC. https://travel.state.gov/content/travel/en/News/visas-news/nvc-public-inquiry-telephone-line-suspension.html

“Eligible to Naturalize” factsheets. U.S. Citizenship and Immigration Services has released fact sheets providing information on the “eligible to naturalize” population, including select characteristics of people with lawful permanent resident status in several areas. https://www.uscis.gov/news/all-news/fact-sheets (scroll to May 16, 2022)

Readout on backlog reduction. U.S. Citizenship and Immigration Services held a virtual public engagement on May 18, 2022, with nearly 2,000 stakeholders nationwide on the agency’s efforts to reduce backlogs and improve processing times. USCIS updated participants on the agency’s recently announced initiatives to use all available regulatory, policy, and operational tools to reduce backlogs and processing times, including the expansion of premium processing, providing timely access to employment authorization documents, and further reducing the agency’s pending caseload. https://www.uscis.gov/newsroom/news-releases/readout-of-national-public-engagement-on-backlog-reduction

Effects of long visa processing delays on tourism and business travelers. On May 9, 2022, Bloomberg Law published “Tourism Industry Rebound Hampered by Long Visa Processing Delays.” The article notes that international travel to the United States is not expected to return to pre-pandemic levels until 2024 at the earliest, in large part because of long visa wait times in some of the largest markets for international travel to the United States. For example, the article notes, as of May 2022 inbound travelers can expect to wait 702 days in Guadalajara, Mexico; 354 days in Sao Paulo, Brazil; and 643 days in Bogota, Colombia. International visitors “typically make up about half of business and tourist travel to the Miami area,” two-thirds of which is from South American countries. Securing visas through the Department of State “has become a major hurdle for international tourists and business travelers, foreign workers, and immigrants seeking family-based green cards,” the article states. https://news.bloomberglaw.com/daily-labor-report/tourism-industry-rebound-hampered-by-long-visa-processing-delays

Ukrainian-language “Uniting for Ukraine” information. U.S. Citizenship and Immigration Services provided information in Ukrainian on the “Uniting for Ukraine” program, under which the Department of Homeland Security (DHS) will offer certain Ukrainian citizens and their immediate family members recently displaced by Russia’s invasion of Ukraine an opportunity to travel to the United States to seek humanitarian parole for up to two years. Qualifications include passing biometric and biographic vetting, having sufficient financial support in the United States, and meeting other eligibility requirements. https://www.uscis.gov/newsroom/alerts/uscis-nadae-informaciyu-schodo-ednannya-zaradi-ukraini (Ukrainian); https://www.uscis.gov/newsroom/alerts/uscis-provides-information-on-uniting-for-ukraine (English)

Agency Twitter accounts:

• EOIR: @DOJ_EOIR
• ICE: @ICEgov
• Study in the States: @StudyinStates
• USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

1. Ronald Klasko, of Klasko Immigration Law Partners, LLP, will speak on the EB-5 panel at the Investment Migration Forum, sponsored by the Investment Migration Council. Global leaders in investment migration from more than 40 countries will be speaking and attending the forum to be held June 6-9, 2022, in Brussels, Belgium. https://investmentmigration.org/forum/

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) announced:

• Partner José Pérez and Attorney Melissa Cantu will present in a Foster webinar, “Basics of Family-Based Immigration,” on Wednesday, June 15, 2022. The webinar will provide HR professionals with a basic understanding of family-based immigration. HR professionals can expect to learn about family-based visas, and issues facing U.S. citizens and lawful permanent residents who wish to reunite with their families. https://attendee.gotowebinar.com/register/4939537719342625549
• Pérez will speak on a panel, “Foreign/Mexican Investments in the Texas Business Markets,” at the U.S.-Mexico Real Estate Investment Summit on Thursday, June 9, 2022. REBS Dallas will bring together executives representing real estate funds, institutional investors, developers, real estate brokers, consultants, attorneys, and academics, as well as government officials and other representatives of the business and financial communities of Texas and Mexico. https://rebs.mx/

IMMpact Immigration Litigation, created by Kuck Baxter Immigration LLC and Siskind Susser PC, announced the first addition to its group of law firms since the joint venture’s founding in 2020: Wasden Bless & Forney. IMMpact, created with the goal of pooling resources to pursue mass immigration-related litigation, has filed 23 federal cases so far, including challenging various Department of State visa bans, a Department of Labor regulation, various cases relating to delays in processing of immigration benefits, and others. Mr. Kuck said, “We are excited and honored to have this amazing team of immigration litigators join the IMMpact Litigation team. Their individual and combined experience in federal court and deep knowledge of government litigation tactics allows IMMpact to offer our clients an unprecedented depth of skill and capacity.” https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:9d777bd7-c05d-3683-bef3-a4e153846658#pageNum=1 (press release); https://www.immpactlitigation.com/ (IMMpact website)

Guest author Prof. Stacy Caplow has authored a new blog post for Cyrus D. Mehta & Partners PLLC, “The Pathos of Patel v. Garland.” http://blog.cyrusmehta.com/2022/05/the-pathos-of-patel-v-garland.html

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) has accepted the position of Editor-in-Chief (EIC) of the American Immigration Lawyers Association’s Law Journal, following the previous EIC’s departure on June 30, 2022. Mr. Mehta’s blog is at http://blog.cyrusmehta.com/.

Mr. Mehta and Jessica Paszco co-authored a new blog post, “H-1B Extension Beyond Six Years Will Not Be Granted If Priority Date Is Current and Green Card is Not Applied for Within One Year.” http://blog.cyrusmehta.com/2022/05/h-1b-extension-beyond-six-years-will-not-be-granted-if-priority-date-is-current-and-green-card-is-not-applied-for-within-one-year.html

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Ethical Considerations When ICE Moves to Dismiss Removal Proceedings Under the Doyle Prosecutorial Discretion Memo,” http://blog.cyrusmehta.com/2022/05/ethical-considerations-when-ice-moves-to-dismiss-removal-proceedings-under-the-doyle-prosecutorial-discretion-memo.html, and , “Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence.” http://blog.cyrusmehta.com/2022/05/helping-afghans-and-ukrainians-can-progress-from-parole-to-temporary-protected-status-to-permanent-residence.html

WR Immigration announced two nominations for Chambers and Partners’ North American Diversity & Inclusion Awards. Bernard Wolfsdorf is nominated for Pro Bono Lawyer of the Year and WR Immigration is nominated for Pro Bono Outstanding Firm. The awards ceremony will be held June 9, 2022, in Los Angeles, California. https://wolfsdorf.com/chambers-diversity-inclusion-awards-north-america-2022/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by law.com in “Immigration Lawyers Welcome Clarity and Lessening of Bias Wrought by Court Notification Statute on Hochul’s Desk.” A measure, passed by the New York legislature and awaiting Gov. Hochul’s signature, is structured so that courts would give standard required language about the risk of immigration consequences resulting from a guilty plea to everyone—the court wouldn’t first find out whether a defendant is a noncitizen. “So there’s no discrimination in that sense,” Mr. Yale-Loehr said. He noted that immigration law and criminal law are complicated, and that advising people about the intersection of them makes it even more complicated. “Many times people erroneously think that it’s only if they plead guilty to a felony crime that they might be deportable, but in many cases under federal immigration law, pleading guilty to a misdemeanor can also make you deportable,” he said

Mr. Yale-Loehr was quoted by Spectrum News in “Lawmakers Call for Investigation Into Office Handling Asylum Cases for New England States.” He explained that some outside factors may have played a part in the Boston U.S. Citizenship and Immigration Service office’s low approval rate. “There are a lot of reasons, [including] high turnover of officers [and] pressure to decide cases quickly … if [officers] see the same kind of case over and over again, you sort of feel like you know that type of case without really probing into the individual facts of the case. … There’s a lot of disparity in all of the USCIS asylum offices and it got worse during the Trump administration. There was pressure from headquarters to make it harder to win approval. So approval rates across the country went down. They just seem to have gone down more in Boston than in some of the other USCIS asylum offices.” https://spectrumnews1.com/ma/worcester/politics/2022/06/01/lawmakers-call-for-investigation-into-office-handling-asylum-cases-for-new-england-states

Mr. Yale-Loehr was quoted by the Washington Examiner in “Biden’s Options Limited on Title 42 COVID-19 Migration Rule After Court Ruling.” Mr. Yale-Loehr said the Biden administration has three options in deciding what to do after a federal district court issued an order barring the administration from terminating its Title 42 policy of barring most people from entering the United States at the U.S.-Mexico border: it could appeal to the U.S. Court of Appeals for the Fifth Circuit, start the rulemaking process and ask for public comment on terminating Title 42, or give up and keep the measure in place. Since the White House has already said it will appeal, that process will play out over the course of several months, leaving Title 42 effectively in place for the foreseeable future. Mr. Yale-Loehr said the decision not to seek an immediate stay may have boiled down to practical reasons. “I suspect the reason is that it is very hard to win an emergency stay,” he said. https://www.washingtonexaminer.com/news/white-house/bidens-options-limited-on-title-42-covid-19-migration-rule-after-court-ruling

Mr. Yale-Loehr was quoted by Univision in “The Four Cases in the Hands of the Supreme Court That Will Impact Hundreds of Thousands of Immigrants.” In one case, he said, “Two lower courts have held that, in certain cases, immigrants have [a] right” to request a bond hearing after six months in detention. “But the conservative majority on the Supreme Court may disagree with those rulings,” he said. The arguments, presented by defense attorneys for immigrants and the U.S. government, will decide whether foreigners who have been detained for more than six months “have the right to a bail hearing to be released,” he noted. In another case, he said, the plaintiff “is arguing that, to avoid a due process violation, he and certain other immigrants should be entitled to a bond hearing after six months in detention. However, in 2021 the Supreme Court ruled 6-3 that immigrants who return to the United States illegally after being deported must be held without bond while they await a second deportation hearing.” Mr. Yale-Loehr further said that “both cases are important, in part due to the large backlog of cases in the immigration courts. More than 1.7 million immigrants have cases pending with the [Executive Office for Immigration Review] (EOIR). It can take years to get a decision. If immigrants have to be detained all that time, the monetary and social costs will be immense.” https://www.univision.com/noticias/inmigracion/estos-son-los-cuatro-casos-de-inmigracion-pendientes-corte-suprema (Spanish with English translation available)

Mr. Yale-Loehr was quoted by Univision in “Supreme Court Ruling Leaves Immigrants With Errors in Their Paperwork on the Brink of Deportation.” Mr. Yale-Loehr said that the Supreme Court’s decision “means that thousands of immigrants each year will no longer be able to go to federal court to correct factual errors by immigration judges. Given how much is at stake in deportation proceedings, Congress should provide funding for attorneys to represent immigrants in all deportation proceedings in the same way that attorneys are automatically provided to everyone charged with a crime.” https://www.univision.com/noticias/inmigracion/fallo-corte-suprema-deja-inmigrantes-al-borde-de-deportacion-las-claves (Spanish, with English translation available)

Mr. Yale-Loehr was quoted by Law360 in “High Court Raises Stakes of Immigration Court Decisions.” He said that noncitizens without legal representation are more likely to be affected by the Supreme Court’s ruling because they don’t have the help of legal professionals trained to watch out for potential errors by immigration adjudicators. He said legal aid programs can help address the disadvantages facing noncitizens who lack access to counsel, and encouraged immigration advocates to push for federal, state, and local governments to fund such programs. “We need to make sure that every immigrant has good representation in immigration court. Given the many errors the immigration bureaucracy makes, many people will be denied their day in court because of this decision,” he said. https://www.law360.com/immigration/articles/1493704/high-court-raises-stakes-of-immigration-court-decisions (registration required)

Mr. Yale-Loehr was quoted by the Associated Press in “Video Spreads False Claims About Immigrants.” Regarding claims that immigrants living in the United States without authorization commit a high number of crimes, he said, “Almost every reputable report that I have seen has found that immigrants commit crimes at a lower rate than native born U.S. citizens.” Mr. Yale-Loehr cited a 2020 study published in Proceedings of the National Academy of Sciences, a peer-reviewed journal. Using data from the Texas Department of Public Safety, the study found that immigrants living in the U.S. without authorization have “substantially lower crime rates than native-born citizens and legal immigrants across a range of felony offenses.” Regarding an estimate of the number of immigrants who could be living in the United States without authorization, Mr. Yale-Loehr said, “Their numbers of 21 million are just wildly off base. They are double what reputable research organizations have found.” He pointed to the Pew Research Center, which estimated that 10.5 million immigrants were living in the U.S. without authorization as of 2017. Regarding claims by conservative activist Candace Owens, citing a 2011 Center for Immigration Studies (CIS) report,  that immigrants living in the United States use public benefits at a high rate and that 80% never go off welfare, Mr. Yale-Loehr noted that a 2002 Brookings Institution report states that use of welfare by legal permanent residents has declined by a faster rate than use of such benefits by citizens. “The CIS report doesn’t distinguish between legal and illegal immigrants,” he noted. “Neither report states that 80% of undocumented immigrants never go off welfare. The bottom line: These two reports fail to support Candace Owens’ claim.” https://apnews.com/article/fact-check-charlie-kirk-candace-owens-immigration-688231079873

Mr. Yale-Loehr was quoted by Time in “Why Judges Are Basically in Charge of U.S. Immigration Policy Now.” He said, “This is a manifestation of our broken immigration system. Today, almost every executive action on immigration is being challenged in the courts.” He also noted that judges having so much power to determine immigration policy also puts the U.S. judicial system in a delicate spot, since federal judges are often wary of being drawn into issues of national sovereignty or of impinging on the executive branch’s authority to conduct foreign policy. But these days, they often have no choice. “Courts are loath to weigh in,” he said. Another reason for the recent explosion of court challenges was the pace at which the Trump administration moved on immigration issues, the article notes. That “unprecedented pace” led to an unprecedented wave of new lawsuits. “That really accelerated the legal challenges,” Mr. Yale-Loehr said. And now, he said, “Conservative states are suing every chance they get to challenge everything that the Biden administration is doing on immigration.” https://time.com/6172684/judges-us-immigration-policy/

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. DHS, DOL Announce Additional 35,000 H-2B Nonagricultural Visas for Second Half of FY 2022 – The Departments of Homeland Security and Labor announced a forthcoming joint temporary final rule to make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of FY 2022. The visas will be set aside for U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022.

2. USCIS Announces ‘Trio’ of Backlog Relief Actions, Expansion of Premium Processing, Relief for Work Permit Holders – USCIS announced a “trio” of efforts, including setting new agency-wide backlog reduction goals, expanding premium processing, and working to improve timely access to employment authorization documents.

3. USCIS Announces FY 2023 H-1B Cap Season Updates – USCIS released several updates related to the FY 2023 H-1B cap season.

4. USCIS Again Extends Flexibilities for Responding to Certain Agency Requests – In response to the COVID-19 pandemic, USCIS is once again extending certain flexibilities through July 25, 2022, to assist applicants, petitioners, and requestors.

5. DHS Secretary Issues Statement on CDC’s ‘Title 42’ Public Health Order Termination – Effective May 23, 2022, the CDC will terminate its Title 42 public health order requiring the expulsion of unauthorized single adults and family units arriving at land borders to protect against the spread of the virus that causes COVID-19.

6. DHS Extends Public Comment Period for Form I-9 Extension/Revisions – The Department of Homeland Security invites public comments on its proposed extension and revisions to Form I-9, Employment Eligibility Verification, before it expires on October 31, 2022. DHS extended the comment period to May 31, 2022.

7. E-Verify Records Disposal Date Extended to May 6, 2022 – USCIS will dispose of E Verify records that are more than 10 years old, which are those dated on or before December 31, 2011. E-Verify employers have until May 5, 2022, to download case information from the Historic Records Report.

8. CBP Announces Reopening of U.S. NEXUS/FAST Enrollment Centers – The NEXUS and U.S./Canada FAST enrollment centers in the United States will reopen April 19, 2022.

9. ‘X’ Gender Marker Available on U.S. Passports Starting April 11, 2022; State Dept. Updates LGBTQI+ Traveler Advice – Starting April 11, 2022, U.S. citizens will be able to select “X” as their gender marker on their U.S. passport applications.

10. Breaking News: Putin Surprises World by Applying for Asylum in the United States – Mr. Putin applied for asylum on April 1, 2022, based on fear of persecution as a member of a newly defined particular social group.

11. Biden Administration Announces Relief Measures for Ukrainians – President Biden announced that the United States will accept up to 100,000 Ukrainians and other displaced people fleeing the Russian invasion in Ukraine.

12. DHS, DOJ Issue Interim Final Rule to ‘Improve and Expedite’ Asylum Claims Processing for Noncitizens Subject to Expedited Removal – The rule authorizes asylum officers to consider the asylum applications of individuals subject to expedited removal who assert a fear of persecution or torture and pass the required credible fear screening, USCIS noted. Currently, the agency said, such cases are decided only by immigration judges.

13. USCIS Updates Guidance on Qualifying Published Material and Scope of Leading or Critical Role in Extraordinary Ability and Outstanding Professor or Researcher Visa Classifications – USCIS is updating its guidance about two evidentiary criteria relating to immigrants of extraordinary ability and one relating to outstanding professors and researchers “to more closely align with recently issued nonimmigrant guidance pertaining to O-1A nonimmigrants of extraordinary ability.”

14. USCIS Updates Guidance on Employment Authorization Class of Admission Codes for E and L Nonimmigrant Spouses – USCIS announced new Class of Admission (COA) codes for certain E and L nonimmigrant dependent spouses who are employment authorized based on their status. Forms I-94 containing these code designations are acceptable as a List C, #7 Employment Authorization Document issued by the Department of Homeland Security.

15. E-Verify Releases New Case Features – Users can now close a case from the document upload page in E Verify by providing one of several reasons. E Verify also added a requirement to download the Further Action Notice before referring a case. E-Verify said this will ensure that users correctly process Tentative Nonconfirmation cases.

16. DHS to End COVID-19 Temporary Policy for I-9 List B Documents on May 1 – The Department of Homeland Security announced that beginning May 1, 2022, it is ending the COVID-19 temporary policy for List B identity documents. As of that date, employers will no longer be able to accept expired List B documents.

17. USCIS Urges Eligible Individuals to Consider Applying for Adjustment in the E-2 Category Based on April Visa Bulletin Date for Filing for India – U.S. Citizenship and Immigration Services encourages noncitizens who have approved immigrant visa petitions in the EB-2 category chargeable to India and a priority date earlier than September 1, 2014, to consider applying for adjustment of status in April.

18. State Dept. Warns About Upcoming Availability of Employment Third Preference “Other Workers” Numbers – High number use in the employment third preference “Other Workers” (EW) category may necessitate the establishment of a worldwide final action date as early as June.

19. USCIS Prepares to Resume Public Services on June 4 – U.S. Citizenship and Immigration Services announced on March 15, 2022, that it is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4, 2022.

20. DHS Designates Afghanistan for Temporary Protected Status – The Department of Homeland Security announced the designation of Afghanistan for temporary protected status for 18 months, effective on the publication date of a forthcoming Federal Register notice. Only those who were already residing in the United States as of March 15, 2022, and who meet all other requirements, including undergoing security and background checks, will be eligible.

21. USCIS Issues Asylum-Based EAD Update Following Decision re Rosario Class Action – Those who applied for initial employment authorization documents (EADs) based on a pending asylum application may be eligible to have their EADs processed within 30 days. If certain conditions apply, USCIS said it may consider such applicants Rosario class members.

22. USCIS Updates Guidance on Employment Authorization for E and L Nonimmigrant Spouses – U.S. Citizenship and Immigration Services is updating guidance to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status.

23. CBP Announces Electronic I-94 Issuance at Land Ports of Entry – For land arrivals, CBP is no longer issuing paper forms to nonimmigrants upon arrival except in limited circumstances and upon nonimmigrant request if feasible.

24. Attorney General Announces New FOIA Policy at EOIR, Other Agencies – Among other changes, the Department of Justice’s Executive Office for Immigration Review will no longer require individuals to file Freedom of Information Act requests to obtain official copies of their own records of immigration court proceedings.

25. Omnibus Spending Bill Signed; EB-5 Regional Center Program Reauthorized – The Consolidated Appropriations Act, 2022, an omnibus spending bill passed by Congress and signed by President Biden, reauthorizes the EB-5 regional center program for five years and includes some changes.

26. State Dept. Releases Info for Nationals of Ukraine, U.S. Citizens in Ukraine – The Department of State released information on March 11, 2022, for nationals of Ukraine to “further clarify visa options and outline alternatives to visas that Ukrainians may consider.”

27. State Dept. Holds Passport Acceptance Fairs – The Department of State announced that it will hold special passport acceptance fairs across the United States. Most of the events are for first-time applicants and children using Form DS-11 to apply.

28. ABIL Global: United Kingdom – The adjusted right-to-work check process has been extended until September 30, 2022.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – April 2022

1. DHS, DOL Announce Additional 35,000 H-2B Nonagricultural Visas for Second Half of FY 2022

On March 31, 2022, the Departments of Homeland Security (DHS) and Labor (DOL) announced a forthcoming joint temporary final rule to make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of fiscal year (FY) 2022. The visas will be set aside for U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022.

The agencies said the supplemental H-2B visa allocation includes 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti, Honduras, Guatemala, and El Salvador.

The measure follows an announcement in January by DHS and DOL of the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of FY 2022.

Details:

• DHS news release, Mar. 31, 2022, https://www.uscis.gov/newsroom/all-news/dhs-and-dol-to-supplement-the-h-2b-cap-with-additional-visas-for-second-half-of-fiscal-year-2022

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2. USCIS Announces ‘Trio’ of Backlog Relief Actions, Expansion of Premium Processing, Relief for Work Permit Holders

U.S. Citizenship and Immigration Services (USCIS) announced on March 29, 2022, a “trio” of efforts, including setting new agency-wide backlog reduction goals, expanding premium processing, and working to improve timely access to employment authorization documents (EADs).

Reducing Backlogs

USCIS is establishing new internal goals to guide backlog reduction efforts and case processing. As part of these efforts, USCIS plans to increase capacity, expand staffing, and improve technology by the end of FY 2023. USCIS said it expects that once these measures are in place, “applicants and petitioners will receive decisions on their cases more quickly.”

Expanding Premium Processing

The Department of Homeland Security announced a final rule that codifies premium processing fees and adjudication timeframes. In FY 2022, USCIS intends to begin implementing, through a phased approach, premium processing availability for Forms I-539, I-765, and I-140. USCIS said it “will also adhere to the congressional requirement that the expansion of premium processing must not cause an increase in processing times for regular immigration benefit requests.”

USCIS plans to begin phased implementation by expanding premium processing eligibility to Form I-140 filers requesting EB-1 immigrant classification as a multinational executive or manager, or EB-2 immigrant classification as a member of a profession with advanced degrees or exceptional ability seeking a national interest waiver.

Under the new rule, premium processing will be available to the following categories:

• I-140 petitions for multinational managers and National Interest Waivers (NIWs). Fee: $2,500 for adjudication within 45 days.
• I-539 applications for F-1, F-2, J-1, J-2, M-1, and M-2 will begin this fiscal year. Premium processing for E-1, E-2, E-3, L-2, H-4, O-3, P-4, or R-2 will not go into effect until FY 2025. Fee: $1,750 for adjudication within 30 days.
• I-765 applications for Optional Practical Training and Js will begin this fiscal year. Premium processing for EADs based on adjustment of status, H-4, or L-2 filings is not available. Fee: $1,500 for adjudication within 30 days.

Extending Work Authorization

USCIS said it continues to make progress toward a temporary final rule to increase the automatic extension period of employment authorization and documentation for certain renewal applicants. USCIS said this will build on progress made in recent months in streamlining many EAD processes, including extending validity periods for certain EADs and providing expedited work authorization renewals for healthcare and childcare workers. USCIS said the goal is to ensure that certain individuals will not lose their work authorization while their applications are pending.

Details:

• USCIS news release, Mar. 29, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work

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3. USCIS Announces FY 2023 H-1B Cap Season Updates

U.S. Citizenship and Immigration Services (USCIS) released several updates related to the fiscal year (FY) 2023 H-1B cap season:

• USCIS has received enough electronic registrations during the initial registration period to reach the FY 2023 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap). Registrants accounts will now reflect one of the following statuses for each registration: submitted, selected, denied, or invalidated-failed payment.
• FY 2023 H-1B cap petitions may be filed with USCIS starting April 1, 2022, including those petitions eligible for the advanced degree exemption, if based on a valid, selected registration.

Details:

• USCIS FY 2023, H-1B Cap Season Updates, https://www.uscis.gov/newsroom/alerts/fy-2023-h-1b-cap-season-updates
• USCIS H-1B Electronic Registration Process page, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process
• USCIS H-1B Cap Season page, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season

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4. USCIS Again Extends Flexibilities for Responding to Certain Agency Requests

In response to the COVID-19 pandemic, U.S. Citizenship and Immigration Services (USCIS) is once again extending certain flexibilities through July 25, 2022, to assist applicants, petitioners, and requestors. USCIS said this may be the final extension of the flexibilities. The agency will consider a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the issuance date listed on the request or notice is between March 1, 2020, and July 25, 2022, inclusive:

• Requests for Evidence
• Continuations to Request Evidence (N-14)
• Notices of Intent to Deny
• Notices of Intent to Revoke
• Notices of Intent to Rescind
• Notices of Intent to Terminate regional centers
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

• The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and
• The agency made that decision between November 1, 2021, and July 25, 2022, inclusive.

Details:

• USCIS alert, Mar. 30, 2022, https://www.uscis.gov/newsroom/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-1

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5. DHS Secretary Issues Statement on CDC’s ‘Title 42’ Public Health Order Termination

Department of Homeland Security Secretary Alejandro Mayorkas released a statement on April 1, 2022, in response to the Centers for Disease Control and Prevention’s (CDC) determination that effective May 23, 2022, it will terminate its Title 42 public health order requiring the expulsion of unauthorized single adults and family units arriving at land borders to protect against the spread of the virus that causes COVID-19.

According to reports, a migrant surge is possible once Title 42 is lifted, and misinformation is a possibility. “Title 42 remains in place until May 23 and, until then, DHS will continue to expel single adults and families encountered at the southwest border,” he warned. Once the Title 42 order is no longer in place, he said, DHS will process individuals encountered at the border “pursuant to Title 8, which is the standard procedure we use to place individuals in removal proceedings. Nonetheless, we know that smugglers will spread misinformation to take advantage of vulnerable migrants. Let me be clear: those unable to establish a legal basis to remain in the United States will be removed.”

Secretary Mayorkas said DHS is increasing its capacity to process new arrivals, evaluate asylum requests, and quickly remove those who do not qualify. DHS will increase personnel and resources as needed and has redeployed more than 600 law enforcement officers to the southwest border, he said. The CDC said, “With CDC’s assistance and guidance, DHS has and will implement additional COVID-19 mitigation procedures.” CDC said that the termination “will be implemented on May 23, 2022, to enable DHS time to implement appropriate COVID-19 mitigation protocols, such as scaling up a program to provide COVID-19 vaccinations to migrants and prepare for resumption of regular migration under Title 8.”

Details:

• “Statement by Secretary Mayorkas on CDC’s Title 42 Order Termination,” Apr. 1, 2022, https://www.dhs.gov/news/2022/04/01/statement-secretary-mayorkas-cdcs-title-42-order-termination
• “CDC Public Health Determination and Termination of Title 42 Order,” Media Statement, Apr. 1, 2022, https://www.cdc.gov/media/releases/2022/s0401-title-42.html

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6. DHS Extends Public Comment Period for Form I-9 Extension/Revisions

The Department of Homeland Security (DHS) invites public comments on its proposed extension and revisions to Form I-9, Employment Eligibility Verification, before it expires on October 31, 2022. DHS extended the comment period to May 31, 2022.

Details:

• Federal Register notice, 87 Fed. Reg. 18377 (Mar. 30, 2022), https://www.govinfo.gov/content/pkg/FR-2022-03-30/pdf/2022-06687.pdf

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7. E-Verify Records Disposal Date Extended to May 6, 2022

U.S. Citizenship and Immigration Services (USCIS) announced on April 1, 2022, that it will dispose of E‑Verify records that are more than 10 years old, which are those dated on or before December 31, 2011. E-Verify employers have until May 5, 2022, to download case information from the Historic Records Report, USCIS said.

Employers must record the E‑Verify case verification number on the corresponding Form I-9 Employment Eligibility Verification, or attach a copy of the case details page to the Form I‑9. Employers should retain the Historic Records Report with the Forms I‑9, the agency said.

Details:

• E-Verify announcement, Apr. 1, 2022,
• “E-Verify Records Retention and Disposal,” USCIS Fact Sheet, Jan. 20, 2021, https://www.e-verify.gov/sites/default/files/everify/factsheets/E-VerifyNARAFactSheet.pdf
• “Instructions to Download Historic Records Reports in E-Verify,” USCIS, https://www.e-verify.gov/sites/default/files/everify/infosheets/DownloadNARAReportsinE-Verify.pdf

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8. CBP Announces Reopening of U.S. NEXUS/FAST Enrollment Centers

U.S. Customs and Border Protection (CBP) announced on March 31, 2022, that the NEXUS and U.S./Canada FAST enrollment centers in the United States will reopen April 19, 2022. NEXUS allows expedited clearance for pre-approved, low-risk Canadian travelers upon arrival in the United States, and FAST allows expedited clearance into the United States for pre-approved, low-risk commercial drivers from Mexico and Canada.

Starting April 5, 2022, conditionally approved applicants may schedule interviews at U.S. NEXUS and U.S./Canada FAST enrollment centers in the United States on the Trusted Traveler portal. NEXUS and FAST enrollment centers in Canada remain closed until further notice. Applicants may enter the United States to complete their interview, but must meet all applicable travel requirements, CBP said.

CBP noted that there is a backlog of applications to be processed by a limited number of open enrollment centers.

Details:

• CBP release, Mar. 31, 2022, https://www.cbp.gov/newsroom/national-media-release/cbp-announces-reopening-us-nexusfast-enrollment-centers
• Trusted Traveler portal, https://ttp.dhs.gov/
• “Fact Sheet: Guidance for Travelers to Enter the U.S. at Land Ports of Entry and Ferry Terminals,” Dept. of Homeland Security, https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals

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9. ‘X’ Gender Marker Available on U.S. Passports Starting April 11, 2022; State Dept. Updates LGBTQI+ Traveler Advice

Starting April 11, 2022, U.S. citizens will be able to select “X” as their gender marker on their U.S. passport applications. The option will become available for other forms of documentation next year, Secretary of State Antony Blinken said in a statement released March 31, 2022.

Secretary Blinken said the Department of State (DOS) “is setting a precedent as the first federal government agency to offer the X gender marker on an identity document.” In addition to male and female, the third gender marker is intended for “nonbinary, intersex, and gender nonconforming individuals”—”unspecified or another gender identity,” he said.

DOS has also updated its advice for LGBTQI+ travelers.

Details:

• Dept. of State release, Mar. 31, 2022, https://www.state.gov/x-gender-marker-available-on-u-s-passports-starting-april-11/
• Dept. of State advice for LGBTQI+ travelers, https://travel.state.gov/content/travel/en/international-travel/before-you-go/travelers-with-special-considerations/lgbtqi.html

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10. Breaking News: Putin Surprises World by Applying for Asylum in the United States

In a stunning development after reports that Russian President Vladimir Putin was “self-isolating” with little communication in recent days, he surfaced at the U.S.-Mexico border and announced on April 1, 2022, that he has applied for asylum in the United States.

In a wide-ranging “60 Minutes” interview, Mr. Putin said:

People may be surprised to hear news. But when people say I am liar, they are not kidding. Was lying for years about my hatred of West, and especially of United States. Is all gaslighting. Really I love you guys and am jealous. I want America to be my forever home. My bad reputation bugs me. I tire of sneering and smirking and poisoning my way through life. I suffer from existential dread. I live in prison of my own making. My dead eyes reveal my despair. My advisers all hate me. I ask you: Do I look happy? Incident in Ukraine is blown out of proportion. Is all big misunderstanding, but meanwhile I’m not safe. My prospects in Russia are dim. So I now apply for asylum in USA, surprise! Your worst nightmare now begs for your mercy!

Reaction was swift. President Biden, seeming to speak for many world leaders, said, “I am gobsmacked. No, I mean it. No joke, folks!” A European Union spokesperson said, “Well, thank goodness all of that unpleasantness is finally over! Pass the moscato.” When asked, the U.S. Department of Justice would only say that the Attorney General is handling Mr. Putin’s case “with rubber gloves.” In the unlikely event that Mr. Putin is granted U.S. asylum, it is unclear where the unpopular tyrant would be able to live. Rumors are that Madame Tussauds Wax Museum has an opening for a despised mannequin.

Mr. Putin has applied for asylum based on fear of persecution as a member of a newly defined particular social group, “dictators in imminent danger of being toppled in a situation of their own making due to escalating insane, brutal, murderous, and repressive behavior with little or no attention paid to logistics.” Dr. Hedwig Bierhals, a professor of history and an expert on dictatorial downfalls at the University of Snicketshire, said Mr. Putin’s asylum claim was unique and unprecedented. “It’ll be an interesting one to watch,” she told the Daily Blabber. “We’ll see if he can make a case for it. It’s historic, regardless of the outcome. Perhaps Kim Jong-un will be next.”

Mr. Putin will be representing himself. According to reports, many attorneys who were approached to represent him scattered like roaches in sunlight. One attorney, who wishes to remain anonymous, said from his undisclosed location, “I wouldn’t defend Mr. Putin’s borscht, let alone represent him in an asylum case.” Responding to rumors that Rudy Giuliani was being considered, a spokesperson said he was out of town kissing Mr. Putin’s assets and was unavailable for comment.

Mr. Putin had a final remark: “See how I tell you West is gullible and weak. This whole thing is one more gaslight. In reality, I hold you all in utter contempt. You are as insects and tiniest bugs I will crush under my imperial feet. Asylum, I spit on you! Make Russia Great Again! And one more thing: How do you say it? ‘Happy Fools of the April Day!’ ”

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11. Biden Administration Announces Relief Measures for Ukrainians

On March 24, 2022, President Biden announced that the United States will accept up to 100,000 Ukrainians and other displaced people fleeing the Russian invasion in Ukraine, in addition to providing an additional $1 billion in humanitarian aid. “This is not something that Poland or Romania or Germany should carry on their own. This is an international responsibility,” he said.

U.S. officials acknowledged that many displaced Ukrainians will want to remain in Europe, closer to their homes and family members, but some may need to find refuge elsewhere. A Biden administration official told reporters traveling with President Biden on March 24, 2022, that admissions of Ukrainians into the United States will be accomplished through a combination of refugee admissions, parole, and immigrant and nonimmigrant visas, with a focus on Ukrainians with family members in the United States. The official said that the United States will prioritize vulnerable people, including those with medical needs, journalists, dissidents, and LGBTQI.

The new measures are in addition to temporary protected status (TPS), for which Ukraine has been designated for 18 months. Individuals eligible for TPS under the Ukraine designation must have continuously resided in the United States since March 1, 2022. Up to an estimated 75,000 Ukrainians in the United States could be eligible for TPS.

According to reports, the Biden administration still struggles with processing issues, including for tens of thousands of Afghans evacuated following the U.S. military withdrawal from Afghanistan, along with other immigration and refugee-related backlogs. Although about 75,000 Afghans have entered the United States via humanitarian parole, many others wait overseas in U.S.-run centers for their cases to be processed.

Details:

• “The U.S. Will Take In Up to 100,000 Ukrainian Refugees Fleeing the War,” National Public Radio, Mar. 24, 2022, https://www.npr.org/2022/03/24/1088506487/us-ukraine-refugees
• “United States Will Welcome Up to 100,000 Ukrainian Refugees,” New York Times, Mar. 24, 2022, https://www.nytimes.com/2022/03/24/us/ukrainian-refugees-biden.html
• Remarks by President Biden, Mar. 24, 2022, https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/24/remarks-by-president-biden-in-press-conference-7/
• USCIS news release (Ukrainian TPS), Mar. 3, 2022, https://www.uscis.gov/newsroom/news-releases/secretary-mayorkas-designates-ukraine-for-temporary-protected-status-for-18-months

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12. DHS, DOJ Issue Interim Final Rule to ‘Improve and Expedite’ Asylum Claims Processing for Noncitizens Subject to Expedited Removal

On March 24, 2022, the Departments of Homeland Security and Justice announced an interim final rule to “improve and expedite processing of asylum claims made by noncitizens subject to expedited removal, ensuring that those who are eligible for asylum are granted relief quickly, and those who are not are promptly removed.”

The rule authorizes asylum officers to consider the asylum applications of individuals subject to expedited removal who assert a fear of persecution or torture and pass the required credible fear screening, USCIS noted. Currently, the agency said, such cases are decided only by immigration judges.

Due to existing court backlogs, USCIS said, the process for hearing and deciding these asylum cases takes several years on average. “When fully implemented, the reforms and new efficiencies will shorten the process to several months for most asylum applicants covered by this rule,” the agency said.

Advocates expressed concerns that asylum seekers whose cases are denied could be hindered in obtaining legal representation. Jennifer Ibañez Whitlock, an immigration attorney and policy counsel for the American Immigration Lawyers Association (AILA), said, “If somebody is not approved in the first instance, they’re going to be required to go through a pretty fast process to appeal. I firmly believe it’s going to affect people’s ability to get a lawyer.” In a statement released on March 24, 2022, AILA said that while the rule includes some positive changes, the organization is “gravely concerned about the tight deadlines and rapid scheduling of hearings which will curtail due process and interfere with the ability to obtain legal representation. Missing from the announcement is any reference to legal orientation, funded legal representation, or even basic know-your-rights presentations for individuals placed through these hearings or language access plans.”

The interim final rule modifies a notice of proposed rulemaking (NPRM) in response to public comments received following the NPRM issued by the two departments in August 2021. The rule will take effect 60 days after publication in the Federal Register, which is expected to occur on March 29, 2022. The departments said they encourage further public comment on the rule during the 60-day comment period.

Details:

• “DHS and DOJ Issue Rule to Efficiently and Fairly Process Asylum Claims,” USCIS, Mar. 24, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-and-doj-issue-rule-to-efficiently-and-fairly-process-asylum-claims
• “New Process for Asylum Cases at the Border Unveiled by Biden Administration,” Louisiana Illuminator, Mar. 24, 2022, https://lailluminator.com/2022/03/24/new-process-for-asylum-cases-at-the-border-unveiled-by-biden-administration/
• “Asylum Changes from the Biden Administration Will Not Ensure Due Process as Required by U.S. Asylum Law,” AILA, Mar. 24, 2022, https://www.aila.org/advo-media/press-releases/2022/asylum-changes-from-the-biden-administration
• “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers” (advance copy), Dept. of Homeland Security, https://public-inspection.federalregister.gov/2022-06148.pdf

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13. USCIS Updates Guidance on Qualifying Published Material and Scope of Leading or Critical Role in Extraordinary Ability and Outstanding Professor or Researcher Visa Classifications

U.S. Citizenship and Immigration Services (USCIS) announced on March 23, 2022, that it has updated its policy manual, effective immediately, to align existing guidance on certain first preference immigrants with a recent manual update relating to nonimmigrants of extraordinary ability. Specifically, USCIS is updating its guidance about two evidentiary criteria relating to immigrants of extraordinary ability and one relating to outstanding professors and researchers “to more closely align with recently issued nonimmigrant guidance pertaining to O-1A nonimmigrants of extraordinary ability,” the agency said.

The updated guidance clarifies that:

• For the extraordinary ability and outstanding professor or researcher classifications, “published material” about the person (or the person’s work in the case of an outstanding professor or researcher) in professional or major trade publications or other major media need not be a printed article; rather, a petitioner may submit more varied forms of evidence including a transcript of audio or video coverage.
• In the extraordinary ability classification, a person may satisfy the leading or critical role criterion through a qualifying role for a distinguished department or division in addition to an entire organization or establishment.

Details:

• “Qualifying Published Material and Scope of Leading or Critical Role in Extraordinary Ability and Outstanding Professor or Researcher Visa Classifications,” USCIS Policy Alert, Mar. 23, 2022, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220323-ExtraordinaryAbility.pdf

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14. USCIS Updates Guidance on Employment Authorization Class of Admission Codes for E and L Nonimmigrant Spouses

Following an announcement by U.S. Citizenship and Immigration Services (USCIS) on March 18, 2022, that it is updating guidance to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status, the agency announced on March 24, 2022, that as of January 30, 2022, USCIS and U.S. Customs and Border Protection began issuing Form I-94, Arrival-Departure records, with new Class of Admission (COA) codes for certain E and L nonimmigrant dependent spouses who are employment authorized based on their status.

USCIS said the COA designations for E nonimmigrant spouses are E-1S, E-2S, E-3S, and L-2S for nonimmigrant L spouses. Forms I-94 containing these code designations are acceptable as a List C, #7 Employment Authorization Document issued by the Department of Homeland Security, USCIS said.

Details:

• “Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses,” USCIS, Mar. 24, 2022, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/documentation-of-employment-authorization-for-certain-e-and-l-nonimmigrant-dependent-spouses
• USCIS policy alert, Mar. 18, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses

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15. E-Verify Releases New Case Features

E-Verify announced in an email sent March 21, 2022, that users can now close a case from the document upload page in E‑Verify by providing one of the following reasons:

• The information entered was not correct;
• The employee voluntarily quit working for the employer; or
• Other (full explanation required in text box).

E‑Verify also added a requirement to download the Further Action Notice before referring a case. E-Verify said this will ensure that users correctly process Tentative Nonconfirmation cases.

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16. DHS to End COVID-19 Temporary Policy for I-9 List B Documents on May 1

The Department of Homeland Security (DHS) announced that beginning May 1, 2022, it is ending the COVID-19 temporary policy for List B identity documents. As of that date, employers will no longer be able to accept expired List B documents.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must update their I-9 employment authorization verification forms by July 31, 2022. DHS provided the following table with details:

Details:

• E-Verify notice, Mar. 17, 2022, https://www.e-verify.gov/about-e-verify/whats-new/dhs-to-end-covid-19-temporary-policy-for-expired-list-b-identity-documents

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17. USCIS Urges Eligible Individuals to Consider Applying for Adjustment in the E-2 Category Based on April Visa Bulletin Date for Filing for India

The Department of State’s Visa Bulletin for April 2022 advances the date for filing applications for an immigrant visa or adjustment of status in the EB-2 category for India from September 1, 2013, to September 1, 2014. U.S. Citizenship and Immigration Services (USCIS) encourages noncitizens who have approved immigrant visa petitions in the EB-2 category chargeable to India and a priority date earlier than September 1, 2014, to consider applying for adjustment of status in April.

USCIS noted that applicants should include Form I-693, Report of Medical Examination and Vaccination Record, with Form I-485, Application to Register Permanent Residence or Adjust Status, to save time. Concurrently filing these two forms is not required, “but filing both forms at the same time may eliminate the need for USCIS to issue a Request for Evidence to obtain your Form I-693. This may also help avoid adjudication delays if we decide that you do not need to be interviewed,” USCIS said.

USCIS continues to encourage eligible applicants to consider requesting to transfer the underlying basis of their pending adjustment of status applications in the EB-3 category to the EB-1 or EB-2 category if they meet the following criteria: a visa is unavailable to them in the
EB-3 category; they have a pending or approved I-140, Immigrant Petition for Alien Workers; and a visa is available in the EB-1 or EB-2 category.

Details:

• USCIS alert, Mar. 17, 2022, https://www.uscis.gov/newsroom/alerts/uscis-urges-eligible-individuals-to-consider-applying-for-adjustment-of-status-in-the-eb-2-category
• Visa Bulletin for April 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-april-2022.html

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18. State Dept. Warns About Upcoming Availability of Employment Third Preference “Other Workers” Numbers

The Department of State (DOS) notes in its Visa Bulletin for April 2022 that high number use in the employment third preference “Other Workers” (EW) category may necessitate the establishment of a worldwide final action date as early as June to hold number use within the maximum allowed under the fiscal year 2022 annual limit. “This situation will be continually monitored, and any necessary adjustments will be made accordingly,” DOS said.

Details:

• Visa Bulletin for April 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-april-2022.html

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19. USCIS Prepares to Resume Public Services on June 4

U.S. Citizenship and Immigration Services (USCIS) announced on March 15, 2022, that it is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4, 2022. USCIS said it is following the Centers for Disease Control and Prevention’s guidelines.

While certain offices are temporarily closed, USCIS continues to provide limited emergency in-person services. As services begin to reopen, offices will reduce the number of appointments and interviews “to ensure social distancing, allow time for cleaning and reduce waiting room occupancy.” USCIS said, “If you are feeling sick, please do not go to your appointment. Follow the instructions on your appointment notice to reschedule your appointment for when you are healthy. There is no penalty for rescheduling your appointment if you are sick.”

Details:

• USCIS alert, Mar. 15, 2022, https://www.uscis.gov/newsroom/alerts/uscis-preparing-to-resume-public-services-on-june-4

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20. DHS Designates Afghanistan for Temporary Protected Status

On March 16, 2022, the Department of Homeland Security (DHS) announced the designation of Afghanistan for temporary protected status (TPS) for 18 months, effective on the publication date of a forthcoming Federal Register notice. Only those who were already residing in the United States as of March 15, 2022, and who meet all other requirements, including undergoing security and background checks, will be eligible for TPS. Under the designation, TPS will also provide “additional protections and assurances to trusted partners and vulnerable Afghans who supported the U.S. military, diplomatic, and humanitarian missions in Afghanistan over the last 20 years,” DHS Secretary Alejandro Mayorkas said.

Through Operation Allies Welcome, DHS said, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis, for humanitarian reasons, for a period of two years and received work authorization. These individuals may also be eligible for TPS, the agency noted.

Details:

• DHS press release, Mar. 16, 2022, https://www.dhs.gov/news/2022/03/16/secretary-mayorkas-designates-afghanistan-temporary-protected-status

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21. USCIS Issues Asylum-Based EAD Update Following Decision re Rosario Class Action

U.S. Citizenship and Immigration Services (USCIS) announced on March 17, 2022, that those who applied for initial employment authorization documents (EADs) based on a pending asylum application may be eligible to have their EADs processed within 30 days, based on a February 7, 2022, court decision in Asylumworks v. Mayorkas. If certain conditions apply, USCIS said it may consider such applicants Rosario class members (referring to Rosario v. USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018)).

Details:

• USCIS notice, https://www.uscis.gov/laws-and-policy/other-resources/class-action-settlement-notices-and-agreements/rosario-class-action

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22. USCIS Updates Guidance on Employment Authorization for E and L Nonimmigrant Spouses

U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2022, that it is updating guidance to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status. USCIS noted:

• On November 12, 2021, USCIS issued a policy announcement to clarify that it would consider E and L spouses to be employment-authorized based on their valid E or L nonimmigrant status. Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between E and L spouses and children.
• As of January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Forms I-94 with the following new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form
  I-9.
• An E or L spouse age 21 or over who has an unexpired Form I-94 that USCIS issued before January 30, 2022, will receive a notice from USCIS beginning on or about April 1, 2022. This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization. An E or L spouse who is under 21, or has not received the notice by April 30, can email
  [email protected] to request a notice.
• USCIS will only send notices to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS. Individuals who received their Form I-94 from CBP should visit cbp.gov.

Details:

• USCIS alert, Mar. 18, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses

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23. CBP Announces Electronic I-94 Issuance at Land Ports of Entry

U.S. Customs and Border Protection (CBP) is now issuing the Form I-94 (Arrival/Departure Record) electronically at land ports of entry. The Form I-94 documents nonimmigrants’ status in the United States, the approved length of stay, and departure information.

CBP has automated the Form I-94 process for most nonimmigrants arriving by air and sea. However, CBP previously issued paper Form I-94s to nonimmigrants arriving by land. For land arrivals, CBP is no longer issuing paper forms to nonimmigrants upon arrival except in limited circumstances and upon nonimmigrant request if feasible, CBP said, noting that nonimmigrants can access the Form I-94 online or via mobile application.

Details:

• CBP notice, 87 Fed. Reg. 15446 (Mar. 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-03-18/pdf/2022-05758.pdf

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24. Attorney General Announces New FOIA Policy at EOIR, Other Agencies

As part of efforts to strengthen public access to government documents, Attorney General Merrick Garland announced in a memorandum that the Department of Justice’s Executive Office for Immigration Review (EOIR) will no longer require individuals to file Freedom of Information Act (FOIA) requests to obtain official copies of their own records of immigration court proceedings.

Attorney General Garland said he encourages all agencies “to examine whether they have similar or other categories of records that they could make more readily accessible without requiring individuals to file FOIA requests.” In addition, he said that records should be posted online “quickly and systematically, agency FOIA websites should be easily navigable, and records should be presented in the most useful, searchable, and open formats possible.” The memo also calls for efficiency and timeliness in responding to FOIA requests “in a spirit of cooperation,” and calls on agency heads to review backlogs and provide training on FOIA. In general, the memo notes nine exemptions from fulfilling a FOIA request (e.g., national security, personal privacy, privileged records, law enforcement interests, and others) but notes that the burden is on the agency to sustain a decision to withhold records, and that agencies may not withhold information “based merely on speculative or abstract fears or fears of embarrassment.”

The memo notes that FOIA.gov continues to serve as the federal government’s central website for FOIA administration.

Details:

• “Attorney General Merrick B. Garland Issues New FOIA Guidelines to Favor Disclosure and Transparency,” Dept. of Justice, Mar. 15, 2022, https://www.justice.gov/opa/pr/attorney-general-merrick-b-garland-issues-new-foia-guidelines-favor-disclosure-and

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25. Omnibus Spending Bill Signed; EB-5 Regional Center Program Reauthorized

The Consolidated Appropriations Act, 2022, an omnibus spending bill passed by Congress and signed by President Biden, reauthorizes the EB-5 regional center program for five years, among other things. The bill includes some changes to the program. Selected highlights are below:

• The EB-5 regional center program is reauthorized until September 30, 2027.
  • For targeted employment areas (TEAs) or infrastructure projects, the investment will increase to $800,000. For other projects, the required investment is $1,050,000. Existing investors’ petitions will be grandfathered under existing rules. TEA letters are valid for two years.
  • As long as an EB-5 petition is filed by September 30, 2026, U.S. Citizenship and Immigration Services (USCIS) must continue to process it even if the program lapses in the future.
  • Immigrant investor petitions can include concurrent adjustment of status filings.
  • Projects can be changed if a regional center or new commercial enterprise is terminated.
  • USCIS will audit regional centers at least every five years.
  • Third-party agent fees and involvement must be disclosed.

The bill also reauthorizes the Violence Against Women Act. It does not include visa recapture provisions.

Details:

• “Investor Immigrants Greet Imminent Revival of the EB-5 Program,” Forbes, Mar. 9, 2022, https://www.forbes.com/sites/andyjsemotiuk/2022/03/09/investor-immigrants-greet-imminent-revival-of-the-eb-5-program/?sh=7223bbff7436
• Consolidated Appropriations Act, 2022, Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/2471?r=7&s=1
• “Violence Against Women Act Renewed as Part of Omnibus Spending Package,” The Hill, Mar. 9, 2022, https://thehill.com/policy/finance/597473-violence-against-women-act-renewed-as-part-of-omnibus-spending-package
• “Green Card Backlog Fix Dropped From Lawmakers’ Budget Deal,” Bloomberg Government, Mar. 9, 2022, https://about.bgov.com/news/green-card-backlog-fix-in-doubt-as-lawmakers-prep-spending-deal/
• “Biden Signs Spending Bill That Includes $13.6 Billion in Ukraine Aid,” CBS News, Mar. 11, 2022, https://www.cbsnews.com/news/ukraine-aid-biden-signs-omnibus-bill/

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26. State Dept. Releases Info for Nationals of Ukraine, U.S. Citizens in Ukraine

The Department of State (DOS) released information on March 11, 2022, for nationals of Ukraine to “further clarify visa options and outline alternatives to visas that Ukrainians may consider.” DOS noted that “a visa is not a viable way to achieve refugee resettlement in the United States.” DOS also recently released information for U.S. citizens in Ukraine. Highlights are below:

• Among other things, certain persons from Ukraine can travel to the United States without a pre-departure COVID-19 test until April 1, 2022, under a national interest exception.
• Humanitarian parole allows a person who may be inadmissible or otherwise ineligible for admission to be in the United States temporarily for urgent humanitarian reasons or significant public benefit. “It is not meant to replace a visa process,” DOS said. Those wishing to apply should contact USCIS.
• Almost all refugee cases in countries abroad are processed by local authorities or the United Nations Refugee Agency (UNHCR). “Ukrainians should not attempt to apply for visas in order to travel to the United States as refugees. Instead, they should contact local authorities or UNHCR for refugee processing,” DOS said. USAID also has information for Ukrainian refugees.
• DOS said that the International Organization for Migration (IOM)’s Resettlement Support Center (RSC) Eurasia is continuing limited operations from Kyiv and from the sub-office in Chisinau, Moldova. At present, RSC Eurasia is not conducting any in-person activities or scheduling any departures from Kyiv. The sub-office in Chisinau can arrange departures for approved Ukrainian Lautenberg applicants who have completed all U.S. Refugee Admissions Program (USRAP) processing requirements and are physically outside of Ukraine, DOS said.
• S. citizens seeking to leave Ukraine can call 1-833-741-2777 (in the United States) or 1-606-260-4379 (from overseas) for immediate assistance. An online form is at https://cacms.state.gov/s/crisis-intake

Details:

• “Information for Nationals of Ukraine,” Dept. of State, Mar. 11, 2022, https://travel.state.gov/content/travel/en/News/visas-news/information-for-nationals-of-Ukraine.html
• “Information for U.S. Citizens in Ukraine,” which includes border-crossing advice,

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27. State Dept. Holds Passport Acceptance Fairs

The Department of State (DOS) announced on March 9, 2022, that it will hold special passport acceptance fairs across the United States. Most of the events are for first-time applicants and children using Form DS-11 to apply. Those eligible for renewal should renew by mail, DOS said.

Those applying for routine service can expect to receive a passport in 8 to 11 weeks, DOS said. Those who need their passports in the next 5 to 7 weeks can pay an additional $60 fee to expedite processing. Acceptance facilities do not offer appointments for urgent travel in less than 5 weeks.

The March fairs were held in various locations in California, Georgia, Florida, New Jersey, and Texas. The April fairs will be held in several locations in California. DOS said that new events are added weekly.

Details:

• “Special Passport Acceptance Fairs,” Dept. of State, Mar. 9, 2022, https://travel.state.gov/content/travel/en/News/passports/special-passport-acceptance-fairs.html

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28. ABIL Global: United Kingdom

The adjusted right-to-work check process has been extended until September 30, 2022.

The COVID-19 pandemic-related video call temporary adjusted right-to-work check process was scheduled to end on April 5, 2022. However, in a welcome development, it has been extended until September 30, 2022. This means that employers can continue to use the adjusted process to check copies of right-to-work documents over a video call.

The extension is mainly to give employers more time to become comfortable with the new digital Identification Document Validation Technology (IDVT) checking process for British and Irish citizens due to launch on April 6, 2022. This means that employers who do not wish to start using the new IDVT process now will benefit longer from the adjusted process for checking British and Irish citizen employees. Beginning October 1, 2022, if they wish, employers will still be able to check original documents from British and Irish citizens without using the IDVT.

Beginning April 6, 2022, employers must perform an online check if the person has a biometric residence permit. It will not be possible to carry out an original document (manual) check or an adjusted check (over video) if the person has a biometric residence permit.

Details:

• Right-to-Work Checks: What Employers Need to Know, Kingsley-Napley, https://www.kingsleynapley.co.uk/services/department/immigration/slp/right-to-work-checks
• Right-to-Work Checks: An Employer’s Guide, UK Home Office, https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

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New Publications and Items of Interest

USCIS fact sheet on efforts to assist Ukrainian nationals. USCIS has released a fact sheet, “DHS Efforts to Assist Ukrainian Nationals.” The fact sheet includes information on legal pathways for eligible Ukrainians, temporary protected status, asylum, the U.S. Refugee Admissions Program, humanitarian parole, and special situations and expedited processing

OFLC presentation materials. The Department of Labor’s Office of Foreign Labor Certification hosted webinars in March for stakeholders in the CW-1 Temporary Certification program and for stakeholders interested in H-2B prevailing wages and surveys. Webinar recordings and presentation materials are available as indicated below:

• March 22, 2022: CW-1 Common Issues and Filing Tips
  See “Webinar” on the CW-1 Program page at https://www.dol.gov/agencies/eta/foreign-labor/programs/cw-1
• March 23, 2022: H-2B Prevailing Wage Determination General Filing Tips and Survey 101 for Surveyors
  See “Webinar” on the Prevailing Wage Information and Resources page at https://www.dol.gov/agencies/eta/foreign-labor/wages

Resources for assisting Afghan clients. The American Immigration Lawyers Association’s webpage, “Find Resources for Assisting Afghan Clients,” provides a list of resources and links to information related to relief for Afghans, such as temporary protected status, asylum and refugee status, special immigrant visas, diversity visas, the proposed Afghan Adjustment Act, and employment authorization documents, along with practice information for immigration attorneys. https://www.aila.org/advo-media/issues/all/resources-assisting-afghan-clients

E-Verify will no longer support Internet Explorer 11. E-Verify announced that it will no longer support the Internet Explorer 11 web browser as of April 30, 2022. Users can access E-Verify using Apple Safari, Google Chrome, Microsoft Edge, and Mozilla Firefox. https://www.e-verify.gov/about-e-verify/whats-new

Agency Twitter accounts:

• EOIR: @DOJ_EOIR
• ICE: @ICEgov
• Study in the States: @StudyinStates
• USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, published a new blog post: “FAQs for Temporary Protected Status (TPS) for Ukraine.”

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm) announced:

• Foster partners Avalyn Langemeier, Layla Panjwani, and Sandra Dorsthorst, and guest speaker Cindy Ellis, program specialist at the Texas Primary Care Office, presented for a Foster webinar, “Immigration Options for J-1s, Physicians & Researchers,” on March 23, 2022. The webinar covered how J-1 exchange visitors and foreign national residents, physicians, and researchers can navigate the various immigration options available to them. https://attendee.gotowebinar.com/register/8568147091005058827
• Charles Foster spoke on a panel, “Locally and Nationally: Where We Have Been, Where Are We Today?,” at the Moving Forward: Challenging Racism Conference at the Holocaust Museum Houston on February 26, 2022.
• Foster gave opening remarks as Honorary Chair of the 2022 Born Global Summit at the University of Houston-Downtown Auditorium and online at the Tech Rodeo platform on March 4, 2022.
• Foster spoke on immigration policy at a luncheon for the Bay Area Rotary Club on March 7, 2022.
• Foster partner Oxana Bowman and attorney Diana Dominguez discussed immigration strategies and planning for online businesses in a webinar, “Immigration Planning and Strategies with Foster,” hosted by the Texas French American Chamber of Commerce on March 9, 2022.

Cyrus D. Mehta & Partners PLLC, has published several new blog posts: “Immigration Relief for Ukrainian Refugees: What the United States Is Currently Offering,” “Using U.S. Immigration Law to Undermine Putin,” “Some Highlights of the EB-5 Reauthorization: CSPA Protection and How 245(k) and Concurrent Filing Combine to Create a New Option for Some Applicants Who Have Recently Dropped Out of Status,” “USCIS Contact Center is More a Source of Frustration Than Assistance,” “In Addition to Granting TPS to Ukrainians, the U.S. Must Do More to Help Ukrainians and Others Outside the U.S. Who Are in Trouble.” http://blog.cyrusmehta.com/

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) authored a new blog post: “In Addition to Granting TPS, the US Must Do More to Help Ukrainians and Others Outside the US Who Are In Trouble.” http://blog.cyrusmehta.com/2022/03/dhs-designates-ukraine-for-temporary-protected-status-immigration-help-in-special-situations-available-on-case-by-case-basis.html

Mr. Mehta, Kaitlyn Box, and Jessica Paszko authored a new blog post: “USCIS Contact Center is More a Source of Frustration Than Assistance.” http://blog.cyrusmehta.com/2022/03/uscis-contact-center-is-more-a-source-of-frustration-than-assistance.html

David Isaacson, of Cyrus D. Mehta & Partners PLLC, authored a new blog post: “Some Highlights of the EB-5 Reauthorization: CSPA Protection and How 245(k) and Concurrent Filing Combine to Create a New Option for Some Applicants Who Have Recently Dropped Out of Status.”

Wolfsdorf Rosenthal LLP has published several new blog posts: “My Immigration Story With Partner Vivian Zhu: Courageous Moves,” “WR Immigration Expands Its Global and Southern California Practices, Announces WRapid Global,” “April 2022 Visa Bulletin Update,” Afghanistan: Tips and Resources for HR Professionals, Employees and Others,” “Ukraine: Ways You Can Help,” “Ukraine: News Updates,” “Ukrainian Resource Page.” https://wolfsdorf.com/news-and-resources/

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) was quoted by Forbes in “USCIS Issues Immigration Rule to Expand Premium Processing.” She said, “While the stakeholder community is grateful for the relatively quick expansion of premium processing to additional I-140 categories, the delayed implementation for Forms I-539 and I-765 is disappointing. Since, generally speaking, I-140 filers already have status and work permission while they wait for their applications to be adjudicated, the individuals most impacted by the continued delays are those who cannot work until the I-539 (application to change/extend status) and I-765 (application for employment authorization) are adjudicated.” https://www.forbes.com/sites/stuartanderson/2022/03/30/uscis-issues-immigration-rule-to-expand-premium-processing/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Law360 in “Pandemic Order Speeding Migrant Removals to End in May.” The article notes that opposition to the Biden administration’s ending of the two-year-old “Title 42” policy allowing the quick expulsion of migrants at U.S. land borders for pandemic-related reasons could lead to lawsuits. “If the lawsuits are successful, Title 42 may continue for some time,” Mr. Yale-Loehr said. https://www.law360.com/health/articles/1480088/pandemic-order-speeding-migrant-removals-to-end-in-may (registration required)

Mr. Yale-Loehr moderated a continuing legal education webinar, “Navigating Trauma: Tips for Attorneys and Their Clients,” on March 30, 2022. The presenters, two Cornell medical school professors (JoAnn Difede and Michelle Pelcovitz) discussed how to deal with trauma in sensitive cases like asylum, domestic violence, and those involving violent crimes. They also discussed how to deal with traumatized clients and attorneys’ own vicarious trauma. The webinar was sponsored by the New York State Bar Association. https://nysba.org/events/navigating-trauma-tips-for-attorneys-and-their-clients/

Mr. Yale-Loehr was quoted by the New York Times in “Facing Demand for Labor, U.S. to Provide 35,000 More Seasonal Worker Visas.” He said, “Even with these additional visas, there’s not nearly enough visas for all of the types of workers that employers want to hire on the H-2B program. But in the short term, at least, this is something the administration can do to help immediately.” https://www.nytimes.com/2022/03/31/us/politics/us-seasonal-worker-visas.html

Mr. Yale-Loehr was quoted by Bloomberg Law in “Narrow Immigration Fixes Sought by Employers, Religious Groups.” He cautioned that passing any immigration bill will likely be a long fight, even with commitments to work across the aisle: “Congress will enact immigration reform only through bipartisan efforts. In that regard, the Alliance for a New Immigration Consensus is a good first step. However, I fear that nothing will happen in Congress this year, both because of the midterm elections and the general controversy about immigration in America.” https://news.bloomberglaw.com/daily-labor-report/narrow-immigration-fixes-sought-by-employers-religious-groups

Mr. Yale-Loehr was quoted by the Cornell Chronicle in “Migrations Project Helps Refugees Claim Health Care Rights.” Commenting on refugees in the United States, he said, “Many of them believe—wrongly—that if they take any public benefits they will become deportable or not be able to get a green card. They lack clear and accurate information about what public benefits they are entitled to in the United States.” https://news.cornell.edu/stories/2022/03/migrations-project-helps-refugees-claim-health-care-rights

Mr. Yale-Loehr was quoted by Voice of America in “Immigration Experts Contrast U.S. Support for Ukrainian, Afghan Refugees.” He agreed that the United States was quick to announce temporary protected status for Ukrainian refugees but noted that both Ukrainians and Afghans have to go through the normal immigration system. “And we don’t have a good system for allowing people to come to the United States quickly,” he said, noting that for Afghan refugees, the humanitarian parole process has been overwhelmed by more than 40,000 applicants, many of whom have been waiting for six months for a decision on their cases. “I don’t see how the administration is going to be able to speed up processing with the expected flood of humanitarian parole applications from Ukrainians. And if the administration does speed it up for Ukrainians, I think there will be legitimate complaints about why they were able to do it for Ukrainians so much more quickly than for Afghans and people from other countries,” he said. https://www.voanews.com/a/immigration-experts-contrast-us-support-for-ukrainian-afghan-refugees/6502093.html

Mr. Yale-Loehr was quoted by the Wall Street Journal in “Muslim U.S. Citizens Questioned About Faith at Border, ACLU Lawsuit Alleges.” The question of whether a person is still fully protected by the First Amendment at the U.S. border has rarely been addressed by courts, he noted: “U.S. citizens have constitutional rights when they enter the United States. But the government also has an interest in protecting the country from terrorists. Courts need to weigh these competing interests.” https://www.wsj.com/articles/muslim-u-s-citizens-questioned-about-faith-at-border-aclu-lawsuit-alleges-11648130400?mod=business_minor_pos4

Mr. Yale-Loehr was quoted by Univision in “Government Issues a New Asylum Rule for Foreigners Subject to Accelerated Deportation.” He said, “The new rule is likely to be challenged in court. The Department of Homeland Security is about to publish a final rule that revises the nation’s asylum procedures. In general, it would allow USCIS asylum officers to initially hear asylum claims instead of people appearing before an immigration judge. The goal is to have a more streamlined asylum system so that people get a decision in months instead of years in our backlogged immigration courts.” However, he noted, “conservative states, like Texas, are likely to challenge the new rule in court for encouraging more asylum claims. So the new rule may not come into effect for some time. But if implemented, it would help alleviate immigration court backlogs and could provide a fairer and faster system for asylum seekers.” https://www.univision.com/noticias/inmigracion/nueva-regla-asilo-deportacion-acelerada [Spanish, with English translation available]

Mr. Yale-Loehr was quoted by the Los Angeles Times in “Hollywood Hotels Scrutinized for Financing Under Visa Program: ‘Not Fair,’ Say Critics.” He noted that the EB-5 immigrant investor green card program has sparked controversy because some developers have fraudulently taken the foreign investments and failed to develop the projects and the jobs that were promised. It is also a complicated program that “is somewhat opaque to the average person because they don’t see any direct jobs created,” he added. https://www.latimes.com/business/story/2022-03-14/eb5-hollywood-hotels-unite-here-local-relevant-group-financing-dispute

Mr. Yale-Loehr was quoted by Forbes in “Investor Immigrants Greet Imminent Revival of the EB-5 Program.” The article discusses the March 15, 2022, revival of the EB-5 regional center program under the omnibus bill passed by Congress. The article includes a summary of the bill co-authored by Mr. Yale-Loehr, Kristal Ozmun, and Nick Hinrichsen (Miller Mayer, LLP). https://www.forbes.com/sites/andyjsemotiuk/2022/03/09/investor-immigrants-greet-imminent-revival-of-the-eb-5-program/?sh=7223bbff7436
(see also https://millermayer.com/2022/breaking-congress-reauthorizes-eb-5-regional-center-program-through-2027/)

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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